Proving Discrimination at Work: Employers to take reasonable steps to prevent sexual harassment

Our video on proving sexual harassment at work provides an overview of the law on sexual harassment and some tips about the sort of evidence you need to collate to prove your case. Please refer back to this here.

From 26 October 2024, an additional obligation will be placed on employers to take reasonable steps to prevent sexual harassment at work. This legal update is to provide some further thoughts as to how this new duty may help you to prove your claim and/or resolve your dispute by achieving meaningful change to your workplace.

What is the Duty?

What will amount to reasonable steps to prevent sexual harassment is not defined and will depend on the size, sector and resources of your employer. However, this is a proactive obligation which is likely to require your employer to do (and document that is has done) a detailed risk assessment of its workplace, and to implement measures to manage the risks identified. This could include for example:

encouraging a “speak up” culture and engaging in meaningful consultation with staff as to where the risks lie and changes that need to be made;
providing tailored and high quality anti-harassment training for all staff;
taking steps to address power imbalances in the work place;
reviewing arrangements for social and external events (including those requiring overnight stays) to minimise the risk of sexual harassment;
appointing a sexual harassment officer or committee to oversee and ensure compliance with the new duty; and
ensuring policies and procedures are better drafted to explain how complaints may be managed promptly and sensitively, and the different potential outcomes.

Your employer simply having a written policy in its staff handbook will not be sufficient, and if your employer fails to meet this new obligation and you are successful in your claim, then you would be eligible for an uplift on any award of up to 25%.

How will this help you?

Once this obligation kicks in and the case law in this area develops, we will get a clearer indication from the Tribunal as to how any failure by your employer to take reasonable steps may help you to prove your claims. However, this new obligation should give you a route map to requiring meaningful change to your workplace as an outcome to your grievance (in addition to any compensation) such that you can continue to thrive at work, rather than being forced to leave a toxic environment.

When drafting your grievance you should identify the reasonable steps your employer should have taken and/or should now take to prevent sexual harassment. We will work with you to understand your workplace and help you to make these representations to maximise your chance of achieving meaningful change. If your employer does not engage with that, then raising your grievance in this way should strengthen your negotiating position to agree settlement terms at the highest level.

If you have concerns about sexual harassment at work, please contact Emma Sangeelee, George Orman or any member of the Employment team. We are experts in this field and are here to help.

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

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