It’s the end of the year, and it’s time to celebrate the hard work that has gone before. Whether it be a Christmas party, team lunches, drinks, or a trip to a Christmas market, it’s likely your employees will be celebrating together. It’s important to remember that as work-related events, the employer’s proactive duty to prevent sexual harassment at work will apply.

This year my client has decided to give each team money towards a festive celebration, to spend how they like. They’ve given them free rein to decide what to do. As it is the teams deciding what to do, what does this mean for the duty to take reasonable steps to prevent sexual harassment – does it still apply?

The definition of sexual harassment under the Equality Act 2010 includes where a person is subjected to unwanted conduct of a sexual nature where this has the ‘purpose’ or ‘effect’ of violating that person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Since 26 October 2024, employers have been under a proactive duty to take reasonable steps to prevent the sexual harassment of their workers ‘in the course of employment’. Failure to comply with this duty can result in enforcement action by the Equality and Human Rights Commission (EHRC) and an uplift of up to 25% of any sexual harassment claims before an employment tribunal.

The duty applies while the employee is working and where they are not, but the circumstance relates to work, such as a staff party or social gathering connected to work.

As the event is being organised and funded by their employer, it is highly likely that the team events will be in the course of employment. Therefore, employers client might be liable for sexual harassment that occurs and is under a duty to take reasonable steps to prevent that from happening.

Employers need to ensure risk assessments are carried out for the events so that the risks of sexual harassment arising can be assessed and managed appropriately.

This will include what activities will be taking place, whether alcohol will be available (although this is not a pre-requisite for sexual harassment to take place) and whether employees will be mixing with third parties who might pose a risk of sexual harassment to them, among other things.

Each event is different and the risks should be assessed thoroughly for each one. While the Equality Act does not expressly make an employer liable for third party sexual harassment, the EHRC makes it clear that this does fall under the proactive duty.

The risk assessment allows for the identification of steps that can be taken to control those risks, and employers will need to take those steps that are reasonable.

A risk that might be identified is employees getting carried away at the event, whether due to alcohol consumption or just as they relax. A step to control this could be to set behavioural expectations prior to the event by reminding employees of any relevant rules and the company’s zero-tolerance stance on sexual harassment (assuming there is one) that is in place, perhaps by writing to them.

If a policy is not in place, employers might decide to implement a ‘behaviour at work-related social event’ policy ahead of the events to make these expectations clear.

Organisations should also think about what happens after the event. Case law has shown that ‘after parties’ following a work event can still be in the course of employment, where the group has continued from the party and has come together because of work.

Encouraging teams to think about arranging transportation after the event can manage this risk, as well as holding the event in a convenient local venue, if possible, so there is not too far to travel.

Should something untoward happen at the event, then it’s important that employers take appropriate action against the perpetrator of the behaviour and provide the employee affected by the conduct with support. This could include access to an employee assistance programme if one is in place.

By Stacie Cheadle, technical writer, Croner-i

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