The duty to prevent sexual harassment: one year on

Jake McManus, Solicitor

It has now been over a year since the sexual harassment ‘preventative duty’ came into force. Since 26 October 2024, employers have been under a duty to take reasonable steps to prevent the sexual harassment of their employees during the course of their employment. The purpose of the preventative duty is to ensure that employers proactively take action to mitigate risks and prevent sexual harassment, as opposed to simply responding to any complaints when it occurs.

We wrote about the legal obligations that employers must follow under the preventative duty and what you need to do here. You can also watch the recording of our HR Breakfast Club seminar from September 2024 when we discussed the new obligations and the practical steps that employers should take here.

Is the duty working?

Given the timeframes it usually takes for a claim to be heard at an Employment Tribunal hearing and notwithstanding that an employee cannot bring a standalone claim where their employer has failed to comply with the preventative duty, we are unlikely to see the effects, if any, of the duty on Tribunal claims until next year. However, there are signs that the new duty is beginning to have an impact in the workplace.

Acas has reported a significant rise in calls to its conciliation and arbitration service in the six months following implementation of the new duty – an increase of almost 40% over that period. When the duty came into force last year, the Kuits employment team also saw a marked uplift in requests for sexual harassment training and guidance, as well as reviews of workplace policies and internal procedures. This suggests that employers are becoming increasingly aware of both the risks associated with sexual harassment and the potential consequences of failing to comply with the new preventative duty.

However, a recent WorkNest survey revealed that nearly half of employers have yet to carry out a sexual harassment risk assessment, and more than half do not believe they have done enough to comply with the new duty. The Equality and Human Rights Commission has previously indicated that an employer is unlikely to demonstrate compliance without a risk assessment in place. These finding therefore suggest that the majority of employers may be falling short of the ‘reasonable steps’ required to prevent sexual harassment, potentially exposing their businesses to legal liabilities and reputational damage.

What’s next?

Under proposals contained in the Employment Rights Bill (which you can read about here), employers will face further obligations in relation to sexual harassment including:

• Stricter duty to prevent sexual harassment in the workplace: the preventative duty will be extended from requiring employers to “take reasonable steps”, to “all reasonable steps”. This increased burden effectively means that employers will need to demonstrate that they have done everything that they can to prevent sexual harassment from occurring.
• Third party harassment: the government is reintroducing liability for third party harassment. Employers are not currently liable for harassment committed by third parties such as clients or customers. The protection from harassment will be extended so that employers are liable where a third party harasses one of its employees during the course of employment (note this is not just limited to sexual harassment, but also harassment relating to all protected characteristics such as sexual orientation, race, religion etc).
• Whistleblowing protections: sexual harassment will become a ‘qualifying disclosure’ under legislation relating to whistleblowing. This will mean protection from detriment and unfair dismissal for whistleblowers making a sexual harassment disclosure.
• Non-disclosure agreements: confidentiality provisions preventing employees from disclosing incidents of sexual harassment will be banned.

Given these increased obligations, we recommend that employers review their internal procedures now to ensure that they well-prepared for the changes coming into force. We can support you in carrying out a sexual harassment risk assessment, updating or implementing appropriate policies and delivering a comprehensive, bespoke training package tailored to your organisation. Please get in touch with a member of the team on 0161 832 3434 or email jake.mcmanus@kuits.com to find out more.