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The law is changing on 26 October 2024 to include a positive duty to prevent sexual harassment in the workplace.

What is the new positive duty?

This is a duty on all employers to assess and minimise the risk of sexual harassment for their employees by other employees, workers or self-employed contractors and third parties (such as customers or clients).

This goes above and beyond the previous duty to defend claims for sexual harassment in the workplace. It also goes beyond the “reasonable steps defence” which simply meant that if an employer had taken reasonable steps (i.e. policies, training etc) and an employee went off on a “frolic of their own” then the employer could avoid liability at Tribunal. This new law is an enduring positive duty.

What do employers need to do?

The duty is going to involve risk assessing your workplace and the potential risks around sexual harassment in your context. It is also going to involve you looking to minimise those risks. The legislation and the guidance is pushing towards a risk based assessment such as the GDPR since 2018. It’s therefore important that employers assess their historic risk and ongoing risk.

It is also important that there is a senior level buy in. An organisation will be criticised if senior leaders have not understood their duties and acted upon them. This includes a zero-tolerance approach at all stages of employment such as recruitment, onboarding and at the end of employment including references and leaving parties.

It will be important also to update your own suite of documents and create risk based documents that can measure and manage risk going forward. The larger the organisation and perhaps the more touch points with those who are outside of the employer’s control, the more likely this is going to be burdensome on the employer. It is therefore crucial that senior leaders and HR professionals understand the rules around sexual harassment in the workplace and this new positive duty to prevent.

A real area here of risk that we foresee at Paris Smith LLP, is social media. Businesses that use social media to contact clients and customers and also the use of social media in the workplace is a high risk area for sexual harassment. Therefore there needs to be explicit thought that if this is the sort of workplace you have, how do you deal with it.

Cost of getting it wrong

The Equality and Human Rights Commission (“EHRC”)have the ability to enforce and fine employers if they are not taking the prevent duty seriously. The EHRC have very limited resources and therefore this may not feel like a sufficient threat. However, the teeth of this legislation is the fact that any Tribunal award will be uplifted by 25% if there is a failure to encompass this duty. It appears that the examination by a Tribunal of the preventative duty documentation and policy and practical procedures is likely to be burdensome in itself and probably prolong sexual harassment cases.

We can help

We are offering a fixed price, high level audit to assist. We are also offering training for all levels in the business. Please contact a member of the Employment team.

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As such, our blogs and posts are not intended to advise you on the law and must not be relied upon as legal advice. If you require advice on a particular issue then please contact us and we will be pleased to help.