Employers to have a legal duty to prevent sexual harassment in the workplace

A significant new legal duty on employers to protect workers from sexual harassment is imminent — and it’s a timely coincidence that this is coinciding with sexual assault allegations against former Harrods boss Mohamed Al Fayed hitting the headlines.  

Here, Eleanor Green and Lee Jefcott explain what employers need to know about the Worker Protection (Amendment of Equality Act 2010) Act 2023 and how to get prepared.

Al Fayed allegations

Following an investigation by the BBC, more than 100 women have stepped forward to share their stories of alleged abuse at the hands of Mohamed Al Fayed during his time as owner of the luxury department store Harrods. These allegations date from 1986 onwards and include incidents of serious sexual assault and rape with victims aged as young as 15.  

The victims who have come forward have called for key staff at Harrods and associates of Al Fayed to reveal what they knew about the abuse. In a statement, Harrods said that “as part of due diligence there is an ongoing internal review (supported by external counsel) including looking at whether any current staff were involved in any of the allegations either directly or indirectly”. Harrods has also announced the establishment of a non-executive committee to further consider the issues arising from the allegations. Despite this, there are concerns about a serious conflict of interest for Harrods as its current managing director, Michael Ward, was appointed by Al Fayed himself in 2005. 

Unfortunately, this is the latest in a series of high-profile cases of sexual harassment which appear to have been covered up in the workplace. In the last 12 months, allegations have been made against a number of high-profile individuals and organisations including the Metropolitan Police and Royal Marines, as well as the government launching a formal inquiry into ‘sexism in the City’ to address concerns raised over misogyny in financial services.

What is sexual harassment?

Sexual harassment is defined as “unwanted conduct of a sexual nature which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”.

The Equality and Human Rights Commission (EHRC) published updated guidance on 26 September which states that conduct ‘of a sexual nature’ could include sexual comments, jokes, pictures, gestures, propositions, intrusive questions, rumours, looks, explicit messages or touching.

While the existing law encourages employers to take proactive measures to prevent sexual harassment from occurring in the workplace, this isn’t a legal requirement. 

Four key steps for employers to prevent sexual harassment 

On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force. This new law will place a mandatory duty on employers to take “reasonable steps” to prevent the sexual harassment of their employees occurring during the course of their employment. This duty will apply to all employers, regardless of the size of the organisation, although what is ‘reasonable’ will be judged partly by the size and resources of the employer. 

Employers will only be able to defend a sexual harassment claim if they can prove that they’ve taken ‘all reasonable steps’ to prevent the behaviour amounting to sexual harassment.

There are various measures that employers can implement to proactively prevent sexual harassment. The first step is to carry out a risk assessment to identify specific risk factors. The Equality and Human Rights Commission (EHRC) Guidance suggests that these might include power imbalances, job insecurity, customer facing duties, socialising outside work and the presence of alcohol.

Specific steps to consider include:

1. Implementing effective complaints channels that allow employees to raise concerns about sexual harassment within the workplace.
2. Providing clear guidance to employees of what sort of conduct would be deemed as sexual harassment, with examples.
3. Providing frequent training to all employees including senior leadership supervisors and managers (and monitoring the effectiveness of that training).
4. Carrying out thorough risk assessments on a regular basis to identify when sexual harassment may occur. 

Risks of getting it wrong

If harassment does occur, this is likely to bring both reputational risks as well as legal ones. 

It’s already the case that an employee can bring claims in an employment tribunal if they suffer sexual harassment at work. In addition, if an employer is in breach of the new preventative duty, compensation awarded can be increased by up to 25%. The EHRC also has various enforcement powers.

Third-party harassment

As the law currently stands, employers aren’t liable for harassment of their workers by third parties, such as customers or members of the public. However, the EHRC has taken the view that the new preventative duty extends to third-party harassment. Employees in the retail and hospitality sectors are at increased risk given the levels of contact that staff have with customers. 

Could Harrods happen again?

The Al Fayed case represents a truly dreadful culture where workers were seemingly afraid to report sexual harassment at work due to a climate of fear and cover up. 

The new preventative duty aims to shift the focus away from dealing with incidents after they happen. Instead, it places emphasis on taking proactive measures to identify risks and prevent sexual harassment. This is a significant change to the current law.

Talk to us 

We offer a range of cost-effective support packages to enable employers to prepare for the forthcoming changes. These include the preparation of compliant sexual harassment policies and training materials for managers and staff. 

If you need advice, give us a call on 0333 004 4488, email us at hello@brabners.com or complete our contact form below.