From 26 October, a new statutory duty under the Protection of Workers (Equality Amendment Act 2010) Act 2023 will require employers in England and Wales to take reasonable steps to prevent sexual harassment in the workplace.

According to Clyde & Co partner Paula Jefferson, this legislation introduces a new area of ​​risk for employers, with a potential increase in compensation of up to 25% in Employment Tribunal claims for breach of this duty.

Jefferson noted that the new duty comes as allegations of workplace harassment continue to surface across sectors, with recent high-profile cases highlighting the need for strong preventative measures.

“The dynamic of the workplace, where power differentials are inevitable, means there is always the potential for abuse to occur,” she said, stressing the importance of safeguarding in all organisations.

To support compliance, new Technical Guidelines on Sexual Harassment and Workplace Harassment have been published, which provide detailed examples of preventive measures. Jefferson emphasized the need for organizations to create a culture where employees feel safe to report harassment, including through anonymous mechanisms.

Prompt, consistent and sensitive handling of such reports is crucial and employers are encouraged to use the outcome of investigations to address potential risk areas or cultural issues.

Jefferson suggested that a policy of low-level concerns, commonly found in educational settings, can be adapted to workplaces. This policy would allow employees to report behavior that makes them uncomfortable without the formalities of a warning. Monitoring these reports can help employers address low-level behavior patterns before they become more serious incidents.

Proactive steps

The new guidance outlines some key actions employers can take to comply with the statutory duty. Jefferson noted that conducting a risk assessment is an important first step in identifying factors that could increase the likelihood of bullying. Employers should consider consulting with unions or employee representatives to understand the perceived risks and create an action plan.

Establishing and periodically reviewing an anti-harassment policy is also essential. This policy should be communicated to staff, including new employees during induction, and made accessible to non-employees.

Jefferson advised employers to consider whether the policy should be shared with contractors or posted on the company’s website to demonstrate a commitment to safe workplace practices.

Engaging with employees through surveys, focus groups and open-door policies can help employers understand where potential problems lie and assess the effectiveness of their preventative measures. According to Jefferson, ongoing engagement is required, with employers looking out for warning signs such as increased absenteeism or changes in behavior and performance.

Legal training and compliance

Training remains a cornerstone of bullying prevention. Jefferson stressed that employers should hold regular training sessions to ensure all workers understand company policies, recognize what constitutes harassment and know how to report it. Training should also address third-party harassment, and tailored programs may be required for different seniority levels or departments.

The guidance also warns against overusing privacy clauses. Jefferson emphasized that these clauses should only be enforced when they are legal, necessary and appropriate, as they should not restrict workers from speaking up about harassment.

Employers are encouraged to address power imbalances and workplace culture issues by conducting culture audits and implementing initiatives such as internal campaigns or naming bullying champions. According to Jefferson, a strong message from senior management can strengthen an organization’s commitment to addressing bullying.

The new statutory duty could lead to an increase in claims, with recent data showing a 46.5% rise in Employment Tribunal cases relating to sexual harassment since 2019. Jefferson advised employers to keep detailed records of all actions taken to to prevent harassment as they can serve. as evidence of compliance in the event of a legal dispute. Proper documentation can help protect organizations from liability if they can demonstrate that reasonable steps were taken.

Jefferson said that while compliance with the law is essential, the broader goal for employers should be to promote safer and more inclusive work environments.

“Employers need to make systemic changes not only to reduce their risk of claims, but also to create safer, more positive and inclusive work environments,” she said.

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