A new duty on employers to take reasonable steps to prevent sexual harassment in the workplace including harassment by third parties, came into force on 26 October 2024.
While sexual harassment can happen in any workplace, there are factors specific to the hospitality, travel & leisure sector which significantly increase the chances of employees being exposed to sexual harassment. This includes interacting with customers, late hours, and alcohol consumption by customers, all of which is more pronounced during the busy festive period.
Employers who do not comply with the new duty may risk exposing their staff to unlawful behaviour, face potential external reputational damage, and legal consequences. In this Law-Now we explore the new duty, explain the guidance that is in place and consider some practical steps that will help employers navigate the duty during December and beyond.
The new duty to prevent sexual harassment
Sexual harassment is defined in the Equality Act 2010 (the Act) as unwanted conduct of a sexual nature which has the purpose or effect of violating the recipient’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the recipient. ‘Conduct’ can cover a wide range of actions, from spoken and written words to physical behaviour.
The new statutory duty to prevent, introduced via an amendment to the Act requires employers to take reasonable steps to prevent sexual harassment of their employees. For the purposes of the Act, ‘employee’ is broadly defined and includes workers, former workers, job applicants and agency workers. The duty covers acts committed ‘in the course of their employment’ which includes the workplace and social events with a sufficient connection to work.
Crucially, the duty not only applies to preventing sexual harassment by other employees, but also by third parties such as agents, customers or suppliers. While employers are not currently liable for sexual harassment by third parties, failing to take reasonable steps to mitigate the risk of it would breach an employer’s duty to prevent.
The duty to prevent is anticipatory, intended to positively change workplace cultures by requiring employers to take proactive steps to protect their employees. Employers should not wait until a complaint of sexual harassment has been raised before taking action. They should seek to predict scenarios within their workplace where employees may be subject to sexual harassment, and take action to prevent this from taking place. If sexual harassment has already taken place, the duty extends to ensuring that it does not happen again.
Consequences of breaching the duty to prevent
If the duty to prevent is breached, the Equality and Human Rights Commission (EHRC) has the power to take enforcement action against the employer. Employees can report breaches to the EHRC directly using a form on their website. Sex discrimination and sexual harassment are listed as a priority action in the EHRC’s draft Strategic Plan 2025-28. No doubt their approach will also depend on whether there is budget and resources to assist them make use of their enforcement powers.
In addition, if an employee succeeds in a claim involving sexual harassment and is awarded compensation, the tribunal must consider whether the employer complied with the duty to prevent. If not, compensation may be increased by up to 25%. However, employees cannot raise a stand-alone claim for breach of the duty to prevent.
EHRC guidance – steps to prevent sexual harassment
The EHRC has published updated technical guidance (the Guidance) to support employers in complying with the new duty to prevent.
The Guidance states that an employer should:
- consider the risks of sexual harassment occurring in the course of employment;
- consider what steps it could take to reduce those risks and prevent sexual harassment of their workers;
- consider which of those steps it would be reasonable for it to take; and
- implement those reasonable steps.
A notable addition to the Guidance is the emphasis on the requirement to carry out a sexual harassment risk assessment. If an employer fails to do this, the Guidance suggests they are unlikely to have complied with the preventative duty. It is clear that a light-touch, tick-box risk assessment exercise will be insufficient.
The Guidance provides examples to illustrate the preventative duty in practice. One example relates to a hotel worker complaining of sexual harassment by a customer. In the example the employee is told that action will not be taken as the employer is not responsible and the ‘customer comes first’. The Guidance states that this would be a breach of the duty to prevent, as “the employer has not taken any steps to prevent hotel workers from being sexually harassed by customers.” The hotel could have taken a number of steps, such as “providing information to customers when they make a booking that sexual harassment of staff will not be tolerated, warning notices, investigating the incident and speaking to the customer to advise that their behaviour is not acceptable.”
The EHRC has also published an 8-step guide, outlining non-exhaustive steps an employer can take. These are:
- develop an effective anti-harassment policy, subject to regular review;
- engage your staff, to understand where potential issues lie and ensure all workers are aware of how they can report sexual harassment and the consequences of breaching the policy;
- assess and take steps to reduce risk in your workplace, undertaking a risk assessment and considering the factors that may increase the likelihood of harassment;
- reporting, using a system to allow staff to confidently raise concerns and keeping a confidential and centralised record of these;
- training, offering all staff regular sessions on what workplace sexual harassment looks like, what to do if they experience or witness it and how to handle complaints;
- effectively dealing with harassment complaints, taking immediate action and respecting the confidentiality of parties;
- effectively dealing with harassment by third parties, treating it equally seriously to harassment by an employee; and
- monitoring and evaluation your actions, regularly evaluating the steps in place as well as any policies and training programmes.
EHRC checklist – preventing sexual harassment in the hospitality sector
The EHRC has also published an updated checklist and action plan for preventing sexual harassment at work (the Checklist). The Checklist was originally designed for the hospitality sector and highlights sector-relevant scenarios such as lone working and power imbalances in which there is a higher risk of sexual harassment.
It focuses on three main areas of preventative measures:
- communicating with staff: how to promote a culture of zero tolerance and let your staff know you take sexual harassment seriously;
- changing the working environment: controlling the physical and social environment that people are working in to make it as safe as possible; and
- working practices: policies and procedures to make sure you know when sexual harassment happens and how it is dealt with.
The Checklist highlights that “policies and procedures alone are not enough to stop sexual harassment from happening in your workplace”, and proactive action must be taken. It details certain actions that could be taken before, during and after shifts in keeping with the duty to prevent.
As a starting point, employers should review the EHRC’s Guidance and Checklist and consider the recommendations in the context of their business.
Impact for employers
Many employers in the hospitality, travel, and leisure industry are aware of the risks of sexual harassment and have taken measures to prevent it.
However, the new duty to prevent ups the ante, particularly around risks from customers. Hospitality, travel & leisure businesses should ensure a sexual harassment risk assessment has been carried out, the anti-harassment policy has been reviewed to specifically define sexual harassment, victimisation and covers third party risks, in addition to reviewing the wider approach to protecting staff from sexual harassment at work.
Where risks are identified, employers must consider what steps they can reasonably take to mitigate them, which may include notifying customers through signage of their zero-tolerance approach.
If complaints are raised about sexual harassment at work, these should never be ignored, and managers should be properly trained in how to address them. Ideally, training on tackling sexual harassment and how to report concerns should be offered to all staff.
The EHRC is also encouraging employers to introduce additional measures such as staff surveys, leadership champions, communications with clients about third party harassment, complaints monitoring and review procedures, anonymous reporting channels and all-staff communications. These will require careful consideration and detailed planning.
A progressive approach now should yield long-term benefits. The direction of travel is increased legal rights in this area. The Employment Rights Bill includes several additional measures to tackle workplace sexual harassment, although these changes are not expected until 2026.
All of this fits into a wider approach of creating a workplace culture of safety and respect where employees feel supported, again particularly important in the often high-pressure environment of the hospitality, leisure & travel sector. This is especially the case during the upcoming festive season, when new staff are often hired and the sector is at its busiest.
If there are gaps in your implementation of the new duty, the CMS’ Employment Team can support you in addressing them, including carrying out policy reviews, providing training (both in person and eLearning), and preparing sexual harassment risk assessments. Further information can be found here: The New Duty to Prevent Sexual Harassment or please get in touch with your usual CMS contact to discuss this further.
Article co-authored by Zosia Zakrzewska
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