Raising the bar on sexual harassment prevention: the enhanced duty explained
Employers are already required to take reasonable steps to prevent the sexual harassment of their staff. The Employment Rights Act will demand more: going forward, employers will need to take all reasonable steps. This article explains what that means in practice, including what the new standard requires, the consequences of failing to meet it, and practical steps employers should be taking now to prepare.
What is the current position?
Employers are under a duty to take reasonable steps to prevent the sexual harassment of employees in the course of their employment. Importantly, this includes sexual harassment of staff by colleagues, but also by individuals outside your organisation.
Breach of the duty does not create a standalone claim. However, if an employee brings a successful harassment claim involving elements of sexual harassment and the Tribunal finds the duty has not been met, it may uplift total Equality Act compensation by up to 25%. Breaches of the duty also fall within the enforcement remit of the Equalities and Human Rights Commission (EHRC). Besides the strict legal risk, sexual harassment allegations continue to pose wider risks for businesses in terms of staff morale and retention, operational disruption and reputational exposure.
What is changing?
The Act lifts the bar: the duty to take reasonable steps to prevent sexual harassment becomes the duty to take “all” reasonable steps.
In due course, the government is also expected to pass secondary legislation setting out steps that it would be reasonable for employers to take. Once these are passed, employers wishing to show that they have taken all reasonable steps will need to follow the steps set out in the regulations, as well as any further steps reasonable under the employer’s specific circumstances.
When are the changes coming into effect?
The enhanced duty is expected to come into force in October 2026.
The new regulations prescribing reasonable steps are not expected until 2027 or 2028, and will be subject to consultation, so employers will have plenty of time to adjust their approach in preparation.
What is the difference between “reasonable steps” and “all reasonable steps”?
The boundary between the two is often difficult to define. However, this will soon be academic: from October, if the employer has not taken all steps, it could reasonably be expected to take – in other words, if a claimant or Tribunal can point to one reasonable preventative measure the employer failed to put in place – it will have breached its duty.
What does that mean for employers?
The change makes the duty to prevent sexual harassment more difficult to discharge. From a financial perspective, that increases exposure in claims involving allegations of sexual harassment as it increases the likelihood of an uplift being awarded. From a reputational perspective, it increases the risk of a finding that an employer has failed to protect its staff.
But it is not all doom and gloom. It is an established defence under the Equality Act that an employer will not be liable for an employee’s acts where the employer has taken all reasonable steps to prevent them. This change aligns the preventative duty with the standard applied in this defence. That means that, if an employee brings a sexual harassment claim based on a colleague’s actions, and the employer can show that it took all reasonable steps to prevent sexual harassment in the workplace, then not only will the employer avoid any uplift being applied, but it will have a defence against the claim.
What should you be doing to prepare?
To meet your existing preventative duty, you should have already completed a risk assessment and implemented an action plan. It is now time to critically evaluate and build out your preventative framework. You should:
- Critically review your risk assessment. This should go beyond a desktop exercise or piece of paper filed in your “compliance” folder — ensure you really understand your organisational culture and employees’ day-to-day experience to see where the risk areas are. Listen to staff. Consider conducting surveys, focus groups or targeted consultation.
- Evaluate the effectiveness of existing measures. For example, you may have rolled out training – have colleagues engaged? Have you seen behavioural change, where necessary? Address concerns and refresh measures where necessary.
- Familiarise yourself with the most up-to-date EHRC guidance (including its technical guidance and its ‘8-step guide’ to preventing sexual harassment) and ensure you are taking any steps recommended that are appropriate for your business. At a minimum, these should include robust anti-harassment policies, staff engagement and training, effective reporting and complaints management frameworks and ongoing review and monitoring. Brainstorm what is working well for your business and what more you could be doing to protect employees. Ensure that these discussions include stakeholders with a variety of perspectives.
- If you have received complaints of sexual harassment, or complaints going more broadly to organisational culture, review them carefully. What is it about the organisation or working arrangements that made this possible? What could have been done to prevent these issues? Did reporting mechanisms work as they should? Were complaints managed appropriately?
While you can and should prepare for the upcoming legislative change, there is a trap here in treating this as a discrete exercise. Going forward, you should keep your preventative measures under continuous review. A healthy culture is not the result of a one-off compliance overhaul; it is something that must be embedded throughout the organisation, continuously nurtured and lived on a daily basis.
How can we help?
We are working with businesses of all sizes across a range of sectors to manage the risks associated with these changes. Drawing on our experience of market practice, we can support you in critically assessing and enhancing your preventative framework.
Get in touch to discuss the practical steps your organisation can take now to prepare.
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