What do we know about the Duty to Prevent Sexual Harassment six months on?

Since 26 October 2024, employers have been placed under a legal duty to take reasonable steps to prevent sexual harassment in the workplace. Data has revealed that the number of sexual harassment disputes reported to ACAS has more than doubled since the introduction of the duty and that trend looks set to continue.

Six months after the implementation of the preventative duty on employers, we know the majority of our clients have been busy, actively adapting their policies and practices to meet this new legal requirement – but employers can’t afford to stop there.

The need for proactive and anticipatory measures to prevent sexual harassment in the workplace means that some form of ongoing, routine, evaluation and risk assessment process should take place with further reasonable steps being taken promptly, if necessary.

So, what have we learned over the last six months that can support employers with that ongoing process:

What have we learnt from the EHRC?

As you may recall, as well as being policed by the courts, the Equality and Human Rights Commission (EHRC) also has the power to take enforcement action against employers suspected of breaching the preventative duty. This includes investigating the employer, issuing an unlawful act notice, entering into a binding agreement with the employer or applying for an injunction to prevent future breaches.

The EHRC has issued guidance which, whilst not legally binding, will be taken into account by employment tribunals when deciding if an employer has breached the new preventative duty and whether to award an uplift to any compensation. If you haven’t already had chance to consider the guidance, it is worth a read through to support you in understanding the types of action required.

The guidance makes clear that employers must treat risk assessments as “live” documents, keeping them under review and ensuring they remain accurate. Producing and maintaining a tailored and regular risk assessment is going to be a fundamental component of the duty – and without one, it’s unlikely an employer will be able to comply with the preventative duty.

Continuous monitoring and evaluation is key.

What have we learnt from McDonalds?

McDonald’s faces joint legal action from over 700 workers, against 450 implicated McDonalds outlets in the UK, for allegations of discrimination, homophobia and sexual harassment –  despite having already entered a legal agreement with the EHRC, agreeing to take preventative steps and not to commit further breaches of the Equality Act 2010.

In March 2025, the EHRC wrote to all McDonald’s franchises to remind them of their legal obligations regarding complaints of discrimination and harassment, including the new preventative duty. The letter includes helpful guidance on what the EHRC considers some reasonable steps in the context of the preventative duty. For example:

• Communicating your business’s zero-tolerance approach to sexual harassment.
• Undertaking regular risk assessments to identify where sexual harassment may occur and the steps needed to prevent it.
• Ensuring younger and more vulnerable workers are properly safeguarded.
• Ensuring complaints are dealt with sensitively, and effectively through robust policies and procedures.
• Being actively aware of what is happening in your workplace and identifying any warning signs, by engaging with staff.

Whether the EHRC will take further action is, as of yet, unclear but the reputational damage to McDonald’s as a result of the EHRC involvement is significant and employers will no doubt wish to avoid such negative attention.

What we have learnt from Employment Tribunal cases:

As of yet, we have not seen an employment tribunal case invoke the new preventative duty.

What we do have, however, are some recent sexual harassment cases to remind us of the kind of risks we can be caught out by:

In Bratt v JGQC Solicitors Limited the claimant was found to be subjected to unwanted conduct of a sexual nature when:

• A Partner sent a WhatsApp message saying “Hi sweetheart see you in the morning xx”, later claiming that it was intended for his daughter. The Judge found that the content of the message and the fact that the claimant believed it was intended for her was created an offensive environment.
• The Partner shared that he had been caught cheating on his wife with a 22-year-old police officer and referred to a used condom being on the floor. The Judge said that talking about a sexual relationship in this level of detail with someone who is new and a junior employee would undoubtedly have the effect of being offensive and uncomfortable.
• He told her she looked nice, commenting “am I allowed to say that?” and two days later, the claimant saw provocative images of women on his Facebook account when he asked her to help him install the app, which made her very uncomfortable.
• On an occasion where the Partner had forgotten a loaf of bread, he used the words ‘fuck’ and ‘wank’, along with other expletives. The Judge said that even if other colleagues appeared to laugh this off, it did not mean that the claimant did not find it inappropriate or uncomfortable.

The Tribunal ruled that these behaviours, even if dismissed as “harmless banter”, created a hostile and degrading work environment, ultimately constituting sexual harassment. The judge said that for conduct to amount to sexual harassment, there did not need to be any sexual motivation on the part of the alleged perpetrator.

In  the case of Miss J Chen v Cut Your Wolf Loose Ltd the Claimant alleged that when the assistant manager walked her home, he kissed her intimately on her neck on two occasions. It was successfully argued that he only gave her an air kiss and the Tribunal assessed that the air kiss was not of a sexual nature or, if it were sexual, it was not reasonable for it to have had the purpose or effect of violating the claimant’s dignity or creating a hostile, degrading, humiliating, or offensive environment for her. It considered the cultural context of air kissing as a social greeting, the lack of accompanying suggestive behaviour and the general conduct towards Miss Chen.

By contrast, in AA Solicitors Ltd & Anor v Majid the threshold for sexual harassment was met by;

• unsolicited invitations to the cinema
• reference to a bed being installed in the office;
• attempts to hug Miss Majid and other unwelcome physical contact such as touching her arms, squeezing and rubbing her hands when shaking hands.

The Employment Tribunal found that such actions violated her dignity and created an intimidating environment, constituting sexual harassment.

What do employers need to prepare for?

The Government is set to expand the preventative duty and harassment law via the Employments Rights Bill (ERB), which is currently making its way through parliament. We will, of course, keep you updated but as currently drafted we can expect to see:

• The preventative duty extended to require employers to take all reasonable steps to prevent sexual harassment of workers, further raising the compliance bar. The duty originally referred to ‘all reasonable steps’, but the word ‘all’ was dropped before the Act was passed into law. The Employment Rights Bill is expected to re-insert the word ‘all’, which will bring the duty in line with the current “all reasonable steps defence” under section 109(4). This means cases such as  Mr John J Campbell v 1) Sheffield Teaching Hospitals NHS Foundation Trust 2) Mr Wesley Hammond: [2025] EAT 42, on the successful use of the defence, will be helpful when considering preventative steps. Take a look out our recent blog post where we discussed the “all reasonable steps” defence.
• Employers being made liable for one-off third-party harassment during employment, whether known about by the employer or not.
• Employees being given six months, instead of three, in which to bring a harassment claim.

Although we will not see these reforms until 2026, it gives us a clear idea of the direction of travel in this area and employers should continue to be proactive in their approach to assessing the risk of sexual harassment by employees and third parties in their workplace and taking proactive action to prevent it.

What kind of action could you be taking?

Here are a few areas employers can focus on when considering their prevention duty:

1. Prepare for an increase in complaints and take them seriously, establishing a clear process for complaint handling and communicating this clearly and consistently with employees.
2. Re-promote existing policies around acceptable behaviour and ensure the sexual harassment policy is robust, regularly updated and communicated to all staff.
3. Create a culture where employees feel comfortable reporting harassment incidents and empower employees to come forward via as many channels as possible such as phone, email, or face to face via specifically trained individuals.
4. Take (and be seen to take) robust action against anyone found or believed to have acted in breach of your organisation’s harassment policies, whatever their seniority or importance to the organisation. Zero-tolerance means just that.
5. Conduct surveys to gauge comfort and risk levels around sexual harassment.
6. Treat your risk assessments as ‘live’ documents, identifying specific situations or activities that may increase the likelihood of sexual harassment and plan for prevention.
7. Train your staff to have a clear understanding of what constitutes harassment and how to respond to it, including training managers on their responsibilities in preventing and addressing harassment within their teams. In order for training to be effective, it must be specific to your organisation and employee role. For example, having different training courses for managers compared with the general workforce.
8. Consider mandating that all suppliers sign up to stamping out harassment as part of the procurement process.

It is no longer enough to adopt a “cross that bridge when we get to it” mentality. Action must be taken to prevent issues from ever arising.   Although it may require an initial investment, it is far less costly than the financial and reputational damage that can result from a harassment complaint.