The new duty to prevent sexual harassment: 5 things to bear in mind

It is now less than 1 month until the new duty to take reasonable steps to prevent sexual harassment comes into force (the Preventative Duty).  Employers should hopefully be well-advanced in their preparations and actions but here are 5 things that may not have hit home amidst the plethora of information out there on this issue:-

1. The duty is to take reasonable steps to prevent the sexual harassment of employees but employees has a wider definition for these purposes.  For example it includes not just people employed on contracts of employment – the traditional definition of employees – but also workers and self-employed contractors who have to provide personal service. Employers should ensure that any policy which sets out its position on sexual harassment and/or provides the mechanism for people to raise concerns/complaints about it does not adopt the narrower concept of “employee” or exclude non-employees from accessing/utilising it.
2. The Preventative Duty requires employers to take steps to prevent sexual harassment of employees by other employees but also by third parties.  Not all categories of third parties will be sufficiently dealt with via steps such as putting up posters and writing anti-harassment provisions into contracts.  For example employers who work with client groups who may not be able to control behaviours which could amount to sexual harassment will need to consider whether there are actually any reasonable steps that they can take to prevent such client groups behaving in that way.  If an employer concludes there are no reasonable steps it can take to prevent the third party from acting in that way, it is likely that a Tribunal would place greater scrutiny on what other steps the employer took, for example to train staff on how to extricate themselves where such situations arise or they believe they could arise.
3. A poll by the TUC from May 2023 found that 70% of women had not reported instances of sexual harassment which they had experienced to their employer.  So unless employers make specific efforts to try and establish the real extent of the issue within their organisation – which may be through anonymous surveys etc – they may well have a false picture of its prevalence and consequently a skewed view on what they reasonably need to do to address the problem.
4. Whether or not an employer has complied with the Preventative Duty is not a question which will exclusively arise in sexual harassment claims against it.  A Tribunal has the power to award an uplift of up to 25% in a successful claim of harassment which involves sexual harassment to any extent.  So the successful claim could be one of (for example) sex or race harassment, but happen to also involve sexual harassment. 

By way of example an employee experiences sexual harassment from a third party in the nature of lewd comments about her appearance, but when she complains about the incident to her manager, the manager says “Women can’t take a compliment anymore”.  The employee cannot (at least, not currently) bring a sexual harassment claim against her employer for the comment made by the third party, but she could bring a claim of sex harassment for the comment by the manager.  If that sex harassment claim was successful, a Tribunal would then be able to consider the employer’s compliance with the Preventative Duty because the successful harassment claim would involve sexual harassment to some extent.

5. The new legislation may not last long in its current form.  The Labour Government has already mentioned strengthening the Preventative Duty to make it an obligation to take “all” reasonable steps.  It may also be expanded to include steps to prevent sexual harassment of interns and volunteers as well.

If you have any questions about your compliance with the new duty, please speak to any member of the Devonshires' Employment Team.