A new era of responsibility is approaching for employers in Wales. From October 26th, employers will be legally required to take proactive steps to prevent sexual harassment of their workers in the course of their employment. This preventative duty forms part of the Worker Protection (Amendment of Equality Act 2010) Act 2023. With this law about to reshape workplace environments, employers need to understand what they must do to ensure compliance.
This new obligation – distinct from existing protections against harassment, discrimination and victimisation contained in the Equality Act 2010 - demands that employers take “reasonable steps” to prevent sexual harassment. But what does this mean in practice, and how can employers prepare?
The Equality Act 2010 defines sexual harassment as unwanted conduct of a sexual nature which has the purpose or effect that either violates an individual’s dignity or creates an intimidating, hostile, degrading, or offensive environment for them. Common examples include unwelcome physical contact, sexual jokes or comments, sexual advances, or sharing sexually explicit content. Despite existing legal protections, many workplaces have not successfully curtailed this conduct, as evidenced by many recent high-profile cases.
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The new preventative duty seeks to change that by requiring employers to anticipate scenarios where sexual harassment could occur and to implement preventative measures.
The crux of this new legal duty is prevention. It will no longer be enough for employers to react when sexual harassment happens; they will be legally bound to cultivate environments that discourage such behaviour. This duty extends beyond preventing sexual harassment by colleagues to cover sexual harassment by third parties such as customers, clients and service users.
Workers cannot bring a claim based solely on a breach of this preventative duty. However, if they bring a successful sexual harassment claim, the employer could suffer significant financial consequences at a tribunal, which I detail below.
A key aspect of the law is its focus on what is deemed “reasonable” for each employer. Factors such as the organisation’s size and resources, the nature of its work, the level of risk present in the workplace and contact with third parties will determine the steps it is expected to take. For example, a large corporation with substantial resources may be expected to take more comprehensive measures than a small business. While no single approach fits all, there are several proactive measures that all employers should consider.
First and foremost, risk assessments are critical. Guidance from the Equality and Human Rights Commission (EHRC) suggests that employers must conduct thorough risk assessments to meet their legal obligations. This means looking closely at their work environment and identifying potential risk factors for sexual harassment. Male-dominated workplaces, or those that tolerate sexist “banter,” are potential risk factors.
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Others are workplaces where alcohol is regularly consumed or where employees work in isolation or in casual roles. Once these risks are identified, employers must implement mitigating measures and regularly review their effectiveness.
Another critical step employers can take is fostering a culture of respect and inclusion, moving away from reactive policies and taking a more proactive stance. This means implementing policies defining sexual harassment and its consequences and ensuring workers feel safe reporting incidents. The more open and transparent an organisation’s approach to sexual harassment, the more likely it is to prevent such behaviour.
Training plays an essential role in this proactive approach. All workers, from junior staff to senior management, should receive training on what constitutes sexual harassment, how to recognise it, how to make a complaint and the importance of a respectful workplace. Managers should be equipped to handle complaints and recognise the signs of potential sexual harassment. These indicators can often be subtle, such as a drop in performance, increased absenteeism, or an unexplained resignation. Regular refresher sessions are as important as the initial training, ensuring that awareness remains high.
Alongside training, organisations must have a clear anti-harassment policy and a robust process for dealing with complaints. Such policies should encourage employees to come forward without fear of reprisal and make it clear that sexual harassment, including by third parties, will not be tolerated and that disciplinary action will be taken against a worker who has sexually harassed a colleague. Employers should also be mindful of the challenges faced by those vulnerable to sexual harassment from clients, customers, or other external parties.
The potential consequences of failing to meet the preventative duty are significant for employers. If a worker successfully brings a sexual harassment claim to an employment tribunal, the tribunal must assess whether the employer breached the duty. A failure to take reasonable steps could lead to a compensation uplift of up to 25%.
With no upper limit on the compensation for sexual harassment, including loss of earnings and injury to feelings, this could prove very costly indeed. Additionally, the EHRC can take enforcement action against non-compliant employers.
Employers must act now, as the new duty will soon become law. Employers can meet their legal obligations and create safer, more supportive workplaces by conducting thorough risk assessments, educating their workforce, fostering an inclusive culture, and establishing clear policies and procedures.
While the legislation may seem challenging, it presents an opportunity for all employers to lead the way in preventing sexual harassment and ensuring that all workers are treated with dignity and respect.
- Paula Kathrens is a partner in the employment law team at Blake Morgan, advising public and private sector clie