A New Duty to Prevent Sexual Harassment in the Workplace

Every employer (from large multi-national employers to smaller owner managed businesses) should have systems in place to prevent sexual harassment in the workplace. However, we have seen in the press that some of largest, most sophisticated employers have been the subject of serious harassment allegations. You need look no further than McDonalds.

The experience of our employment team is that employers implement systems and controls and believe that these will keep them safe. This is correct but only to a limited degree. Employers should not only be ensuring that they have systems in place but they also need to continually satisfy themselves that those systems are robust, being used and that they are sufficient to root out and deal with conduct which is unacceptable. This has become more important still in light of new positive duty to prevent harassment brought about by The Worker Protection (Amendment of Equality Act 2010) Act 2023 (Act) which will come into force in October 2024.

The Act extends the obligations on employers to prevent sexual harassment in the workplace by:

  • placing a mandatory duty on employers to take reasonable steps to prevent the sexual harassment of their employees; and
  • allowing an Employment Tribunal to order a compensation uplift of up to 25%, where sexual harassment has occurred, and an employer has failed in this duty.

Employers can be found vicariously liable for sexual harassment committed by an employee. An employer may be able to defend this claim if it can show that it took all reasonable steps to prevent the discrimination.

The Act extends this responsibility further by compelling employers to take pro-active steps to prevent sexual harassment occurring in the first place. A failure to do so will lead to an to increase in any award which a successful employee obtains at the Employment Tribunal.

The Equality and Human Rights Commission (EHRC) will, in due course, update technical guidance on this subject. However, that will be subject to a full consultation, and it is expected that a statutory code of practice will be developed from this in due course.

It is important that employers now review their current processes and identify where there are risks of sexual harassment occurring in their organisation.

The employment team at Sintons are able to assist you with any review of your policies and procedures in this respect and advise on the steps businesses should take and that they will continue to need to take once the EHRC’s guidance is re-issued.

If you have any questions in relation to this article, or employment law generally, please contact a member of the team.

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