New duty on the prevention of sexual harassment at work

Adam Gates, Becky Mackarel and Richard Plaistowe from our Financial Services and Professional Services practice hosted a roundtable event on a new duty on employers to take reasonable steps to prevent sexual harassment at work – or risk financial penalties and reputational damage. 

On 26 October 2024, The Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force. The Act has profound implications as it requires employers to be proactive and anticipatory to prevent their workforce being subjected to sexual harassment, including by third parties.

In early October, Odgers Interim was delighted to host a lunch and expert-led discussion of the new duty, embracing the updated technical guidance issued by the Equality and Human Rights Commission (EHRC). Our event covered not only what the new duty requires businesses to do but also extended beyond the legal parameters to examine the overlap with human rights, and the opportunity this presents to further embed and accelerate sustainable business practices.  

In essence, we explored two major questions. How much is enough? And how can you position this new duty as a game-changer to promote business integrity and activate your sustainability strategy?

Answers were provided by a duo of expert speakers, both Partners at leading law firm DWF. Kate Meadowcroft, Head of DWF’s Employment practice, Birmingham, gave the legal context relating to what sexual harassment is, who is held responsible and what steps employers should take to comply with the new duty; while Tracey Groves, Head of Sustainable Business & ESG Advisory Practice, tackled the topic from a governance and culture standpoint.

It is crystal clear that the new duty cannot be treated as simply another compliance exercise because it seeks to protect everyone’s fundamental human right to feel safe and free from harassment at work, an issue we addressed in a previous event/piece on whistleblowing and psychological safety. Yet shockingly, sexual harassment remains prevalent. According to the Ethics at Work 2024 survey by the Institute of Business Ethics, it comprises 20% of reported misconduct.   

Employers found to be in breach of the new duty will be punished with the potential of a 25% uplift in compensation and could find themselves investigated by the EHRC. However, for most the greater worry is the failure of the organisation to protect its workforce with the ensuing reputational damage.

“Whilst it's obviously a concern having an employment tribunal complaint, this is about reputational risk,” says Kate Meadowcroft. “No organisation wants to be in the news because they have failed to prevent sexual harassment within their workplace. Key stakeholders — investors, customers, employees — don't want to work for or with organisations which allow sexual harassment in their workplace.”  

There is a lot for employers to take on board. For example, liability extends to third parties with whom employees may come into contact in the workplace, such as an electrician fixing the lights. Moreover, ‘workplace’ is a far more elastic concept than many realise. Employers are equally liable for sexual harassment that takes place at the Christmas party or in an employee WhatsApp group as they are if it occurs in an office meeting room or corridor.

There is no one size fits all and there is no defined checklist to follow. Preparing for and addressing this new duty requires a risk-based approach that will be different for every organisation. However, employers should consider taking the following steps to protect their people and their corporate reputation as a starting point:

• Develop and widely communicate a robust anti-harassment policy, which includes third party harassment.
• Undertake regular risk assessments to identify where sexual harassment may occur and the steps that will be taken to prevent it. EHRC guidance warns "an employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment".  
• Train workers, managers and senior staff on what sexual harassment in the workplace looks like, what to do if they experience or witness it and how to handle complaints of harassment.  
• Be proactive in monitoring what is happening in the workplace and any warning signs.  

Lessons learned sessions and exit interviews are useful tools for evaluating whether the measures you take are effective. While some will consider the new duty to be yet another compliance burden, its purpose is to promote workplaces free from harassment and poor behaviours, and those organisations that fully embrace it may experience a boost to their reputation.

“This is a fantastic opportunity to place people at the heart of your business, to really activate your purpose and your corporate values,” says Tracey Groves. “It's a critical enabler of you demonstrating your integrity as a business. Human rights are at the heart of responsible business and are being included in new and upcoming ESG related legislation. It's happening anyway, so why not embrace it? Use this new duty as a business force for good. But if you don't, be mindful of the consequences.”