Building a safer workplace for all: the new duty to prevent sexual harassment and its impact on the construction sector

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.

In recent years, many employers in the construction sector have taken significant steps to change cultural attitudes, improve workforce diversity and reduce incidents of harassment. However, the new duty to prevent paves the way for more rapid change. In addition to legal consequences, employers who fail to comply with the new duty risk reputational damage and putting their staff at risk.

This is particularly relevant in an industry where factors such as lack of gender diversity and frequent interactions with third parties mean there are multiple sexual harassment risk hotspots. Risk becomes increasingly pronounced in the busy Christmas party season. The Equality and Human Rights Commission (EHRC) has further amplified the sector as one for focus, by including a construction specific example in its final technical guidance on sexual harassment at work.

In this Law-Now, we explore the new duty, explain the supporting guidance, and consider some practical steps to help construction employers adopt new preventative practices.

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 any 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. This is of particular note to the construction sector, given the frequency of collaboration across organisations.  

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 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 resource to assist them in using their enforcement powers.

In addition, if an employee succeeds in a claim involving sexual harassment and is awarded compensation, the employment 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.

Construction specific steps

The Guidance provides examples to illustrate the preventative duty in practice. One example relates to “a large firm in the construction industry”. Following a risk assessment that identifies a high risk of sexual harassment, the firm consults with its recognised trade unions and women’s staff network and decides to re-launch the firm’s anti-harassment policies and implement the following actions:

• Running training for managers on what sexual harassment is and how to take appropriate investigative and supportive action if it is reported;
• Having senior leaders speak to all staff about how sexual harassment will not be tolerated and how all reports will be taken seriously;
• Setting up a senior management development programme for women to encourage greater diversity in leadership roles;
• Running refresher training for all staff, with particular emphasis on inclusion, respectful behaviour and the importance all staff reporting any sexual harassment they witness;
• Sending a formal letter to all clients and contractors to advise of the firm’s refreshed stance on tackling sexual harassment and that it will not be tolerated, and engaging in discussions on the same;
• Asking female staff whether they are comfortable attending initial client site visits alone or whether they would prefer to attend with a colleague;
• Setting up anonymous sexual harassment reporting channels to encourage speaking up;
• Setting up a new, GDPR-compliant evidence hub for managers to record all reported incidents and evidence and committing to review this information every 6 months; and
• Committing to refresh the staff survey every 6 months and engage with the women’s network to evaluate whether the actions taken are effective.

By doing the above, the EHRC states “the firm has likely taken reasonable steps to prevent sexual harassment of its workers” and has therefore met the legal duty.

These are extensive actions, and the EHRC caveats that “the resource required to complete the above actions would likely be justified given the high risk of sexual harassment in the business. Not all businesses will need to take all of these steps to comply with the preventative duty.” It is clear that what constitutes “reasonable steps” under the Act will depend on factors such as the size and resources of the employer. A small architectural consultancy may be able to comply with the duty by taking less extensive measures, proportional to its workforce, resources, and level of risk.

The EHRC has also published an 8-step guide, outlining non-exhaustive steps an employer can take and, for those in the thick of Christmas party season, a specific Christmas party guide: New sexual harassment law and workplace Christmas parties: What employers need to know | EHRC

Impact for employers

Sexual harassment remains an unfortunate reality across all industries. Many employers in the construction sector are already 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 clients and contractors. Construction businesses should ensure a sexual harassment risk assessment has been carried out, that the anti-harassment policy has been reviewed to specifically define sexual harassment and victimisation and cover third party risks, in addition to reviewing the wider approach to protecting staff from sexual harassment at work. It is no longer sufficient for companies to briefly refer to sexual harassment within another policy.

Where risks are identified, employers must consider what steps they can reasonably take to mitigate them, which may include notifying third parties of their zero-tolerance approach through signage.

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, which is particularly important in the often high-pressure environment of the construction sector.

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.

Co-authored by Zosia Zakrzewska