In this latest podcast, our employment experts discuss the new laws, introduced in October 2024, which places a positive duty on employers to take reasonable steps to prevent sexual harassment of its employees in the workplace. These laws mean that if an employee is sexually harassed, and the employer has failed to take reasonable steps to prevent that from happening, any compensation can then be increased by up to 25%.
What steps should employers be taking?
Employers should avoid the temptation into rushing into putting new policies, procedures and training into place without giving careful thought to what those might achieve. It should not be treated as a box ticking exercise.
The starting point for any employer will be to conduct a careful risk assessment, identifying where its employees might be exposed to potential risks of sexual harassment. This will differ from business to business and may even differ between different teams and departments at the same employer. This exercise will identify where the risks lie, which will then allow each employer to consider what steps it can take to eliminate those risks, or at least minimise the risks as much as possible.
All employers should be working towards an end result where there is a zero tolerance approach to sexual harassment, but also one where employees feel safe to report concerns and have confidence that concerns raised will be handled sensitively and effectively. For many, this will mean much more than raising awareness of what is not acceptable, it is likely to include training for managers to give them the skills they need to address concerns in the right way.
What other challenges are employers facing?
One of the main challenges is that of fear. Management can often worry that, by raising extra awareness of sexual harassment, it might have the unintended impact of encouraging more complaints. However those concerns are generally misguided. The majority of employers who have embraced the issue have seen positive results; when concerns have been raised, it has not been to seek compensation but instead because the employee has confidence that the employer will resolve the issue for them. This shift then helps those employers with their ongoing risk assessments, because they are dealing with points of concern that are actually being brought to their attention, often before the matter develops into something more serious.
What further law changes are expected?
The most significant change, due to come into force later in 2026, will be to develop the current law to include liability where employees are harassed by third parties in the course of their employment.
While this is not due to come into force until next year, most employers are looking at this issue now, in conjunction with their overall risk assessments and their shift towards a zero tolerance mindset.
A further change to look out for is the proposal that NDAs and confidential agreements cannot be used to prevent an employee from making disclosures about allegations of harassment or details about the employer’s response to the allegations. While it is anticipated that there will be some exceptions included in any final legislation, it is likely that a standard settlement agreement will not be enough.
Will restrictions on confidentiality mean that parties are less likely to settle claims in the future?
There is a good chance that it will reduce the number of settlements. When allegations of this nature are made, whether or not well founded, impact on reputation will be part of an employer’s consideration on whether or not to settle.
Although the proposed new laws are designed to give individuals more protection, if the appetite to settle is reduced as a result, it may all become a little counterproductive. Many individuals with valid claims would rather not be forced to relive their experiences, have to litigate and air the issues in public, they would prefer to resolve them privately.
However, even if these restrictions are added, there will still be advantages to settlement in a lot of cases. There will be commercial factors but there will also be an assessment of the risk of wider disclosure; if a matter is resolved quickly, privately, and as amicably as possible, that in itself may remove the employee’s desire to discuss the matter after resolution. If the matter is not resolved and the issues come to light at public hearing, it might be even more damaging.
For more information about any of the issues covered in this update, or if you are an employer or employee needing further advice, please get in touch with one of our Employment Law solicitors today.
