New duty on employers to prevent sexual harassment

This is a guest blog by Brabners

From 26 October 2024, employers will have a positive obligation to actively prevent sexual harassment by implementing reasonable preventive measures. The law will require employers to take “reasonable steps” to prevent harassment of a sexual nature against employees in the course of their employment.  

Despite the reference to “employment”, this duty will apply not only to internal employees, but also in relation to any temporary workers you engage. This means that staffing agencies could be liable for harassment carried out by the end-client against an agency worker on an assignment. Agencies should therefore satisfy themselves that their clients have reasonable preventive measures in place to prevent harassment in the workplace.  

What steps should I take as an employer? 

• Conduct risk assessments to identify how harassment might occur and consider what reasonable steps could be taken to mitigate those risks. 

• Produce or update policies and procedures to set out expected behaviours and complaint mechanisms. Provide training on these policies. 

• Consider separate, tailored policies and procedures for internal staff and agency workers, as well as managers and non-managers.  

• Provide training to managers to support them in dealing with complaints from both permanent staff and temporary workers. Where online training is provided, ensure that it cannot be skipped and there is a quiz at the end to aid understanding. Wherever possible, undertake in-person training to maximise engagement. 

• Have a clear timetable for refresher training once a year as a minimum. 

• Encourage reporting of sexual harassment and ensure that any complaints raised are properly investigated.  

What steps should I take in respect of temporary workers? 

What amounts to “reasonable steps” will depend on the specific circumstances of your business, including its size and sector. Obviously, you have limited control over what happens on a client’s site, so the steps which you could reasonably take in respect of temporary workers wiIl differ from the steps which you should take regarding your internal staff. Nevertheless, some of the steps recommended above will be relevant, and you should also: 

• Complete due diligence on end-clients by requesting information and documentation on their sexual harassment training, policies and preventative measures.  

• Include an express term in contracts with end-clients notifying them of your policy on harassment and requiring them to share this internally and to comply with your requests for information. If possible, also include indemnities in respect of any harassment committed by the end-client’s staff. 

Risks of getting it wrong 

It goes without saying that no business would want one of their employees or temporary workers to suffer sexual harassment. Additionally, if harassment does occur, this could bring reputational risks as well as legal ones. 

If a person brings a sexual harassment claim and the Tribunal finds that their employer failed to take reasonable steps to prevent the harassment from occurring, then the Tribunal will have the power to increase the compensation payable to the individual by up to 25%.  

Businesses should therefore implement reasonable preventive measures, ensuring that they are enforced and regularly reviewed.