PROACTIVE DUTY TO PREVENT WORKPLACE HARASSMENT
A Bitesize Webinar Follow-Up
In our most recent Bitesize webinar we considered the upcoming changes to the employer’s duty to prevent sexual harassment. Though the amendment to the legislation may seem small (the addition of the word “all” in respect of the reasonable steps defence) it could pose a significant shift in how employers are expected to manage sexual harassment risks.
Traditionally, employers have dealt with sexual harassment through a more reactive framework. It has long been the case that employers are usually vicariously liable for harassment perpetuated by an employee unless they can show they took “reasonable steps” to prevent it. For a while now, those preventative measures have been things such as having policies, training staff, and responding to complaints appropriately. Largely, this operates as a defence to any Harassment claim, not a freestanding duty to prevent harm.
From October this year, this changes. Employers will be under a positive legal duty to take allreasonable steps to prevent sexual harassment before it occurs. The focus shifts from “did you do something reasonable?” to “what more could you reasonably have done?”
This raises the bar in two ways. First, the duty is proactive: employers must actively identify risks in their workplace such as power imbalances, informal environments, or client-facing roles, and address them in advance. Second, it is more demanding: if additional reasonable steps were available, employers are expected to have taken them. Employers may find themselves on the wrong side of a Tribunal judgment if an employee were to suggest that “something” more could have been done in respect of preventing sexual harassment and the employer failed to consider that option.
In practice, compliance begins with risk assessment, followed by targeted action—such as tailored training, effective reporting channels, and appropriate safeguards in higher-risk situations. These measures must be kept under review, not treated as a one-off exercise.
The duty also extends to third-party risks (e.g. clients or customers). While employers cannot control third parties, they must take reasonable steps to mitigate those risks—for example by setting expectations, supporting staff, and acting on issues. This is where we may see the most conflict for employers. Ultimately, even though it may be difficult from a commercial perspective to have difficult conversations with clients, employers will be expected to prioritise their employees’ safety and well-being over maintaining commercial relationships.
Ultimately in dealing with this new duty evidence is critical. Employers should be able to show they identified risks, took targeted steps, and monitored effectiveness in practice not just on paper. The businesses who will stay on the right side of the new duty are those who are able to introspectively look at their business, identify areas of risk and keep these under constant review, changing approaches, policies and training needs appropriately. It is not a case of simply setting a policy and having training anymore.
Whether you need assistance with putting together risk assessments, updating policies, delivering tailored training, or stress-testing your current approach against the “all reasonable steps” standard, we would be happy to help. Please get in touch with us to discuss how we can support your organisation in meeting these new obligations with confidence.
