Under the current law, if employers can show it took all reasonable steps to stop sexually harassing behaviour(s), then it can seek to rely on what is known as the statutory defence, the statutory defence applies in discrimination and harassment cases. However, not all employers either choose to, or are able to, demonstrate they have taken all reasonable steps to prevent discrimination, harassment, and sexual harassment from occurring.   

The ability of employers to show it has embedded policies, manager training around equality and harassment is inconsistent. Under the current defence regime, the previous government believed there is no incentive on employers to combat or prevent sexually harassing behaviours at work, this is why the government has introduced change. 

What is the new duty?  

The new provisions add a proactive duty to take "reasonable steps" to prevent sexual harassment. What this means in practice will depend on the employer's unique circumstances, including size and resources. 

• The Equality and Human Rights Commission (EHRC) can investigate employers and take enforcement action based on a suspicion of non-compliance. It can act before there is a claim and there does not need to be an incident of sexual harassment before the EHRC will consider exercising its enforcement powers. 
• The Employment Tribunal can increase compensation for a successful claim of sexual harassment by up to 25%. 

The Equality and Human Rights Commission (EHRC) has released valuable resources to assist employers in understanding and fulfilling their new legal obligations. These resources include an 8-step employer guide (available here) with updated technical guidance on the preventative duty. 

This comprehensive guide provides practical advice on: 

• Harassment, victimisation, and the preventative duty, 
• Outlining steps employers can take to prevent harassment and victimisation at work, 
• What employers should do if harassment or victimisation occurs  

The EHRC has included examples to illustrate the practical steps employers of various sizes and industries can take to eliminate harassment in their workplaces. 

What does this new guidance mean for new employers?  

The EHRC guidance sets out what reasonable steps an employer can take to prevent sexual harassment of workers by third parties such as clients and customers, a duty which is not included in the Worker Protection Act itself. The guidance also recommends that employers do the following:  

• Develop and widely communicate a robust anti-harassment policy, including third-party sexual harassment 
• Undertake regular risk assessments to identify where sexual harassment may occur and the steps that will be taken to prevent it 
• Engage with staff through one to ones, surveys and exit interviews to ensure they are proactively aware of what is happening in the workplace and of any warning signs 
• Monitor and evaluate the effectiveness of actions 

The government has highlighted its intention to expand the new duty to require employers to take all reasonable steps to prevent harassment occurring, not just "reasonable" steps.