Imminent change to employment legislation: The duty to prevent sexual harassment is coming into force in October 2024

Earlier this year we highlighted a forthcoming new duty on employers to prevent sexual harassment in the workplace (here). The Worker Protection (Amendment of Equality Act 2010) Act 2023 (the ‘Act’), which will implement the new duty, comes into force on 26 October 2024.

With the implementation date fast approaching, this note summarises the new duty, what steps schools should consider to comply, and the Equality and Human Rights Commission (“EHRC”) draft guidance which was consulted on over the summer and is due to be published this month.

The duty to prevent sexual harassment

As of 26 October 2023, all employers will have a duty to take “reasonable steps” to prevent its employees being sexually harassed during the course of their employment. Some schools may be aware that the duty has been watered down from the original Bill. The word “all” was removed, which placed a higher standard on employers to take “all reasonable steps”. We covered this amendment in our previous article in more detail here.

There will be consequences for those employers who fail to comply with the duty. Where an employee is found to have been subject to sexual harassment during the course of their employment, and an employment tribunal is satisfied the duty was breached, the compensation awarded to the employee may be uplifted by up to 25%. However, an individual cannot bring a claim for a breach of the duty alone. Separately, the EHRC will have the power to take enforcement action. This could include investigating the employer, issuing an unlawful act notice requiring the organisation prepares an action plan for remedying the breach or taking an employer to court.

To avoid these consequences, schools should ensure they are taking reasonable steps to prevent staff being subject to sexual harassment, including from third parties, during the course of their employment.

ECHR draft guidance

In 2020, the EHRC produced guidance on sexual harassment in the workplace. The EHRC is updating this guidance to address the new duty and to help employers understand their obligations. A consultation on proposed changes to the guidance took place over the summer, closing on 6 August 2024. Whilst the final version is yet to be published, we do not anticipate significant amendments.

The draft guidance reiterates that employers have a positive legal duty to prevent sexual harassment of its workers, including by third parties. The test for determining whether an employer has taken “reasonable steps” to prevent its employees from being sexually harassed during the course of their employment or by third parties will be objective. This means that whether or not reasonable steps have been taken will vary between employers and depends on the facts and circumstances of the case, such as its size and resources. The guidance goes on to state employers should:

• Consider the risks of sexual harassment occurring in the course of employment
• Consider what steps it could take to reduce those risks and prevent sexual harassment of their workers
• Consider which of those steps it would be reasonable for it to take
• Implement those reasonable steps.

The guidance also sets out that the new duty is an anticipatory one. This means that employers will need to anticipate scenarios when its employees may be subject to sexual harassment in the workplace and take reasonable steps to prevent it from happening. In other words, employers should not wait until an incident of sexual harassment has taken place before it takes action.

What steps can schools take to prevent sexual harassment?

The draft guidance includes examples of measures employers could take to demonstrate it has taken reasonable steps. Schools should therefore consider the following:

• Carry out a risk assessment: Schools should undertake a risk assessment to identify the roles and areas where the risk of sexual harassment is likely to be higher and consider whether there are any measures that could reasonably be taken to reduce the risk.
• Update policies and procedures in relation to sexual harassment to clarify the law, expected behaviours and complaints mechanisms: Schools should review all relevant policies and procedures to ensure that they are updated in line with the new law.
• Training for staff and managers: Prepare to carry out specific, regular training for staff. Schools should also provide more specific training for mangers to assist them in dealing with any complaints raised by staff. Reminders for refresher training should be diarised, and we recommend doing this at least annually.

Other ways in which schools can demonstrate they are taking reasonable steps might include:

• Creating a culture of zero-tolerance and demonstrating the school’s commitment to it. Having clear policies and procedures can be helpful in creating this culture
• Encouraging staff to raise concerns and establishing reporting lines so that employees feel confident to report cases of harassment. Reports of sexual harassment will need to be investigated without delay to assist in creating a culture of zero-tolerance within the school
• Ensuring that there are processes in place to deal with complaints promptly and effectively
• Conducting annual staff surveys to review the effectiveness of the training provided and relevant policies
• Informing third parties of the school’s zero-tolerance policy to the harassment of staff.

Further reform?

The Act was drafted and received royal assent during the previous government. Whilst it will come into force as drafted on 26 October, the new Labour government has committed, in its New Deal for Working People, to strengthening the requirement to instead require employers to take “all reasonable steps” to stop sexual harassment, including harassment by third parties. It remains to be seen whether and when this amendment may be implemented and the extent to which it impacts the current guidance.

In summary, whilst schools should take proactive steps to address their obligations in accordance with the new duty, many will already have robust arrangements in place for mitigating the risk of sexual harassment in the workplace. It will be important to review those existing arrangements in the light of the new duty and to take any further “reasonable steps” to ensure compliance.