PART 2 - New UK Employers’ Preventative Duty: Taking Reasonable Steps to Prevent Sexual Harassment

Advice | 17 October 2024

Written by: Lydia Button
Trainee Solicitor

Written by: Lydia Button, Trainee Solicitor

In Part 1 of this three-part series, we outlined the legal test for sexual harassment and considered the allegations against Mohammed Al-Fayed arising out of his ownership of Harrods and Fulham FC. In Part 2 we explore the new obligations being imposed on employers with effect from 26 October 2024, and the concept of the statutory defence available to employers of “all reasonable steps”.

Sexual harassment in the workplace remains a significant issue in the UK and it is often not reported. We know that currently employers can be held legally responsible for the actions of their employees in harassment claims in the workplace or in work-related contexts, under the concept of vicarious liability. However, employers can mount a defence if they can prove they took all reasonable steps to prevent the sexual harassment from occurring, taking into account the size and nature of the organisation. In essence, the defence allows employers to argue that despite their best efforts to prevent harassment, it occurred anyway, and therefore they should not be held responsible for this unforeseeable misconduct.

The New Preventative Duty: A Proactive Approach

Recognising the need for change, the UK government has implemented a new preventative duty under the Worker Protection (Amendment of Equality Act 2010) Act 2023 (“the Worker Protection Act”) which is coming into force on 26 October 2024.

The new duty aims to improve workplace cultures by requiring employers to take reasonable steps to protect their workers from sexual harassment. It differs from the previous legal framework by placing a heavy burden on employers to be more proactive, rather than merely reacting after incidents occur.

At its core, the changes impose the following obligation on employers:

Employers must take reasonable steps to prevent sexual harassment; and
This duty extends to require employers to take reasonable steps to prevent third-party sexual harassment e.g., sexual harassment of employees by clients, visitors, or contractors.

The “All Reasonable Steps” Defence to Harassment Claims vs the New Preventative Duty to Prevent Sexual Harassment

Both mechanisms aim to encourage employers to create safer, harassment-free workplaces. However, they differ in scope, purpose, and the way they hold employers accountable.

Aspect	"All Reasonable Steps" Defence	New Duty to Prevent Sexual Harassment
Nature	Reactive – used as a defence after harassment has occurred (and all other types of discrimination) and a claim is made[1].	Proactive – imposes a proactive obligation on employers to take steps to prevent sexual harassment before it happens.
Scope of Application	Covers all forms of harassment (racial, gender-based, etc.). Focuses on employer liability for employee actions.	Focuses specifically on sexual harassment, including third-party harassment by non-employees.
Timing	Comes into play when defending a legal claim after harassment has occurred.	Applies continuously, requiring employers to take action to prevent harassment at all times.
Third-Party Harassment	Mainly covers harassment between employees.	Holds employers liable for sexual harassment by third parties (e.g., customers, clients, suppliers).
Enforcement and Liability	Can be used to avoid liability in the Employment Tribunal if employers show they took reasonable steps to prevent harassment from occurring.	Employers can face liability or regulatory action for failing to take preventive measures even without a specific claim (see “Consequences of Non-Compliance” below).
Examples of Reasonable Steps*	Anti-harassment policies, regular training, clear reporting mechanisms, prompt investigation of complaints.	Similar measures, but with an increased emphasis on creating a culture of respect and preventing sexual harassment.

*We will be sharing practical steps employers can take to prevent sexual harassment in Part 3 of this three-part article series.

Consequences of Non-Compliance

Employers who fail to take reasonable steps to prevent sexual harassment could face significant consequences. Beyond being held liable for claims of harassment which in itself seriously and adversely impacts a business’ reputation, employers may be subject to punitive damages and increased fines.

Employees may be awarded financial uplifts of up to 25% of the compensation awarded if it is shown that the employer failed to take adequate preventive measures.

The new rules also empower the Equality and Human Rights Commission (EHRC) to investigate and take enforcement action against non-compliant organisations.

Employment Rights Bill 2024

*Stop Press* Since the Worker Protection Act gained royal assent, the Labour government has published a new Bill – the Employment Rights Bill – which is addressing a wide range of employment related areas from amending unfair dismissal rights (to be a “day one” right) to ending firing and rehiring. It also has sought to broaden the remit of the Worker Protection Act in a number of ways. Key changes proposed under this new Bill are:

Where the preventative duty had required employers to take reasonable steps to prevent sexual harassment, under the new Employment Rights Bill it is proposed that it should be “all” reasonable steps that are taken. This would then mirror the current defence available to employers available for all types of harassment and discrimination; and
Employers are directly liable for failing to prevent third party harassment. Employers must not permit third party harassment of employees and applicants – they must take all reasonable steps to prevent it. Notably this is in respect of all types of harassment, including sexual harassment.

This Bill is brand new and yet to be consulted on and regulations will also flesh out the bare bones including what will be specified as regarded as reasonable steps to determine whether an employer has failed in its duty to prevent sexual harassment. The Worker Protection Act it seems, is just the start of the revolution.

Positive Duty to Foster Safer Work Environments

The new anticipatory, preventative duty is designed to encourage a cultural shift in how employers approach sexual harassment, representing a more robust, proactive and progressive approach to tackling harassment. It pushes employers to think beyond legal compliance and focus on creating workplaces that are safe, inclusive, and free from sexual harassment.

Please do get in touch with our Employment Team if you have any queries on 020 8290 0440 or employment@thackraywilliams.com.

[1] Please note that the defence applies across all discrimination claims under the Equality Act 2010, not just harassment. However, we are exploring the defence in the context of harassment only here.