In an earlier instalment of our Festive Series, we shared our top tips for organising a successful Christmas party. Unfortunately, sexual harassment complaints are one of the most common complaints employers face post-Christmas party season.

In today's article, we are looking at the new requirement for employers to prevent sexual harassment, and how employers should handle the unfortunate scenario where an employee makes a complaint relating to inappropriate sexual conduct which occurred during a workplace party.

A new law, which is intended to strengthen the protections available to employees from sexual harassment at work, was given Royal Assent on 26 October 2023. The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force in October 2024. It only applies to sexual harassment and does not apply to harassment based on other protected characteristics like race or religious beliefs, for example. This legislation will introduce a statutory duty on employers to take "reasonable steps” to prevent sexual harassment of their employees in the workplace. This marks a significant change to the existing legislation.

Currently, the law provides a defence for employers to a sexual harassment claim if they can show that they took all reasonable steps to prevent the unwanted conduct. However, it is not a legal requirement to take such steps. In contrast to this, the incoming legislation places a positive legal obligation on employers to take proactive steps to prevent sexual harassment. As a result, it is likely a zero-tolerance approach will be taken to sexual harassment at Christmas parties, other formal work social occasions but also informal events and drinks.

The new legislation does not provide any detail on what steps will be considered “reasonable” for an employer to take. However, the Equality and Human Rights Commission (EHRC) intends to produce a Code of Practice for employers on compliance with the new obligations and this should be considered by employers when available.

Ahead of the Code of Practice being published, employers should:

  • review their current sexual harassment policies and any applicable sexual harassment complaints procedure;
  • consider implementing or updating a dedicated sexual harassment complaint channel to ensure complaints can be lodged easily and with minimal barriers; and
  • carry out high-quality, up-to-date training so that employees understand the threat of sexual harassment and those who witness it feel empowered to intervene and speak up.

Where an employer is found to have breached the new duty to prevent sexual harassment, the EHRC may take enforcement action against the employer. Tribunals will also have the power to increase compensation in successful sexual harassment claims by up to 25%. The new duty will sit alongside employees' existing protections from sexual harassment in the Equality Act 2010.

As is the case now, it is not only employers that can be sued for sexual harassment. The harassing co-worker can also be sued and where an award of compensation is made, both the individual and the employer will be jointly and severally liable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.