Enhanced Employer Duty to Prevent Sexual Harassment in the Workplace

Overview of New Obligations for Employers in the UK
In early 2023, the UK enacted the Worker Protection (Amendment of Equality Act 2010) Act, expanding employer responsibilities to proactively prevent workplace harassment, including sexual harassment. This amendment increases the potential for employer liability, mandating that organisations take “reasonable steps” to mitigate harassment risks before they arise.

New Employer Duty Effective October 26, 2024
The UK has taken further steps to expand on the responsibilities of employers to prevent sexual harassment. The Amendment Act, effective from 26 October 2024, obligates UK employers to take reasonable measures to prevent sexual harassment at work. The Amendment Act retains the Equality Act 2010’s definition of sexual harassment as any unwelcome conduct of a sexual nature that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.

Under the Amendment Act, if a tribunal determines that sexual harassment occurred and awards compensation, it must consider whether the employer took adequate preventive steps. If not, the tribunal may impose a “compensation uplift,” adding up to 25 percent to the original compensation based on the employer’s level of negligence.

The Equality and Human Rights Commission (EHRC) has in turn issued guidelines to assist employers with compliance under the Amendment Act. Recommended practices include:

1. Anti-Harassment Policy – Clearly define sexual harassment, outline prohibited behaviour, establish penalties, and provide a reporting mechanism.
2. Employee Engagement – Maintain an open-door policy, conduct surveys, and ensure staff understand the anti-harassment policy and its enforcement.
3. Risk Assessment – Identify risks such as power imbalances and gaps in diversity that may increase harassment risk.
4. Clear Reporting Mechanisms – Set up straightforward reporting channels.
5. Training – Equip employees to recognise, prevent, and respond to harassment.
6. Confidential Resolution of Complaints – Address allegations with promptness and confidentiality.
7. Third-Party Accountability – Extend anti-harassment protections to interactions with non-employees, such as clients or suppliers.

Kenya’s Position on Employer Duty to Prevent Sexual Harassment
While Kenya’s Employment Act does not explicitly require employers to take preventive measures against workplace sexual harassment, Section 10 requires that employers with 20 or more employees establish a sexual harassment policy. This policy should define sexual harassment, describe prevention steps, and outline disciplinary measures. Kenya’s Sexual Offences Act further stipulates criminal penalties for those in authority who make repeated, unwelcome advances, punishable by up to three years’ imprisonment and/or a minimum fine of KES 100,000.

To date, Kenyan courts have generally required employers to respond to complaints of harassment rather than take proactive preventive measures. However, a shift toward imposing preventive obligations to follow in the footsteps of the developments in the UK are in the horizon.

Practical Guidelines for Employers
To minimise liability and cultivate a respectful workplace, Kenyan employers should promote a culture of professionalism and inclusivity, supported by robust governance frameworks and accountability measures. Employers can lead by example by publicly endorsing anti-harassment policies, allocating resources for training and support, and ensuring transparent reporting mechanisms.

Key recommendations include:

• Establishing Clear Anti-Harassment Policies – Policies should define harassment, communicate zero tolerance, and explain the consequences of violations.
• Regular Risk Assessments – Periodically assess and mitigate harassment risks within the organisation.
• Comprehensive Training Programs – Regularly educate employees on recognising and addressing harassment.
• Support Systems for Complainants – Provide safe, confidential reporting and support structures.
• Transparent Governance – Maintain high ethical standards and accountability, led by senior leadership.

Conclusion
Developing and upholding comprehensive anti-harassment policies is essential to fostering a safe and respectful workplace. By implementing strong preventive measures, training employees, promoting open communication, and supporting accountability, employers can protect the well-being of their workforce while safeguarding their organisational integrity and stemming potential liabilities.

Should you have any questions regarding the information in this legal alert, please do not hesitate to contact, Rosa Nduati-Mutero and Luisa Cetina.

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Contributors
1. Grace Gacheru – Manager
2. Michelle Gitumbi – Associate
3. Annrose Mwaura – Senior Officer
4. Ruth Muthama – Associate