This duty is set to have a widespread impact on employers, with a range of significant reforms to the laws surrounding sexual harassment at work and the responsibility shifting firmly to the employer.

What Does The New Positive Duty Involve?

In a nutshell, from October 2024, every employer has a legal duty to actively prevent sexual harassment. If employers fail to do this, they could be subject to huge financial penalties if a successful claim is made against them.

The key change is that the duty is now proactive, not reactive. The Equality Human Rights Commission (EHRC) will have the ability to investigate and enforce action against an employer. This is without the need for an individual issue to be raised or identified. This means that employers should not just wait until an issue arises before taking action to prevent sexual harassment at work. 

Section 26 of the Equality Act 2010 defines sexual harassment as:

“unwanted conduct of a sexual nature which has the purpose or effect of violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.”

What Happens If An Employer Fails to Prevent Sexual Harassment At Work?

If employers are taken to an employment tribunal, found liable, and they did nothing to prevent sexual harassment at work, the tribunal can now uplift any compensation awarded to the claimant by up to 25%. If the employer did take some reasonable steps then they may still be found liable but no uplift to the compensation awarded to the claimant will be applied. However, employers should be taking all reasonable steps to prevent harassment to avoid liability and to prevent this type of behaviour from taking place.

What Can Employers Do To Prevent Sexual Harassment At Work?

The EHRC has produced a comprehensive guide on preventing sexual harassment. In light of the new positive duty, it is advised that employers do the following:

• Conduct risk assessments to identify areas of vulnerability;
• Take steps to remove or mitigate risks;
• Train staff on how to handle concerns;
• Record actions;
• Monitor and report outcomes; and
• Implement further actions if needed.

Employers are advised to prepare properly for this new duty and ensure the correct processes are in place to prevent sexual harassment at work. At Kitson Boyce, our expert team of employment lawyers are here to help you navigate your responsibilities in light of these changes. Based across our offices in Torquay, Plymouth and Exeter, our employment team can provide you with the effective legal advice you need. Whether you require further guidance to understand exactly what you are held accountable for or wish to make changes to your policies, simply get in touch with us via the form below, emailing [email protected] or calling 01803 202020.