New positive duty for employers to minimise workplace harassment

This October sees the introduction of a new positive duty on employers to take reasonable steps to protect their workers from sexual harassment.

The Worker Protection (Amendment of Equality Act 2010) Act 2023, comes into force on 26th October 2024. The Act introduces a new positive legal obligation on employers, which if breached allows the Equality and Human Rights Commission (EHRC) to take enforcement action against the employer. Employment tribunals will also have the power to increase compensation for sexual harassment by up to 25%. In practice, what this means is that employers will need to “take all reasonable steps to prevent sexual harassment of employees in the course of their employment”.

We raise this now to give employers the opportunity to get ready for the new obligations they will face. As a first step towards this we advise employees to look at introducing a suitable anti-harassment and bullying policy and an equality policy if these are not already in place. If they are in place, we recommend that they are reviewed with the new duty for employers in mind to make sure they are still appropriate and serve to minimise the risk of successful claims against them. A further step towards meeting this new duty is to consider providing training for all staff, not just on the law but also how to handle those individuals with a propensity to behave in a discriminatory manner and unlawfully.

The EHRC is also currently working on amending its guidance on preventing sexual harassment in the workplace. This guidance makes it clear that the new preventative duty on employers extends to protecting workers from sexual harassment by third parties, such as customers or clients. The guidance explicitly states that “the preventative duty includes prevention of sexual harassment by third parties”, meaning employers must take reasonable steps to prevent such harassment or risk breaching this duty.

The repeated emphasis on third-party harassment in the guidance suggests that the EHRC is prepared to use its enforcement powers against employers who fail to protect their employees from harassment by third parties. However, it’s important to note that under the current form of the Act, employees who experience harassment by third parties may not have a straightforward path to pursue a tribunal claim for sexual harassment on their own.

Please get in touch if you have any questions regarding the issues discussed in this article.

E: help@jma-hrlegal.co.uk / T: +44 (0)1252 821792