Emma O’Connor, legal director at Boyes Turner, reports on the new positive and proactive duty on employers to prevent sexual harassment in the workplace and discusses what employers can do now to prepare.
On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force, bringing with it a new positive legal obligation on employers to take “reasonable steps” to protect their employees from sexual harassment “in the course of employment”. Compensation increases and new investigatory and enforcement powers for the Equality and Human Rights Commission (EHRC) give this new legislation teeth.
What is sexual harassment?
Sexual harassment is defined as “unwanted conduct of a sexual nature that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”. Sexual harassment may be spoken or written words, imagery, physical gestures, facial expressions or looks, jokes, gossip or discussing a person’s sex life. Sexual harassment can be a one-off act or many and may impact men and women. The definition of “in the course of employment” is wide and can include client events, work parties and online abuse.
What is the current duty to prevent sexual harassment at work?
Sexual harassment in the workplace is – and will continue to be – unlawful. Employers are vicariously liable for the sexually harassing behaviours of their staff in the course of employment and unlike other areas of employment law, both employers and individuals can be named as respondents.
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Compensation for sexual harassment (as for all harassment and discrimination claims) is potentially without limit. As well as the damage to the individual concerned, reputational damage to the business is also a consideration.
Employers may avail themselves of the “statutory defence” under the Equality Act 2010, showing that it took all reasonable steps to stop discrimination, harassment or sexually harassing behaviour(s) within the workplace. However, not all employers either choose or are able to demonstrate they have taken all reasonable steps to prevent sexual harassment from occurring.
The ability for employers to show it has embedded policies, and manager training around equality and harassment is inconsistent, as well as often being a reactive gesture to acts that have already occurred. Under the current regime, there is no incentive for employers to combat or prevent sexually harassing behaviours at work or additional penalties for doing nothing.
Enter the new proactive and preventative duty
From 26 October 2024, a new duty is imposed on all employers to take reasonable steps to prevent sexual harassment in the course of employment. It is a positive, proactive and preventative duty. Non-compliance is not an option, and the rules apply to all employers. If an employer cannot meet this new requirement, compensation could be increased by as much as 25% in a successful claim.
Is this a standalone claim?
A failure to meet the “reasonable steps” obligation is not a free-standing claim; employees cannot sue their employer directly for not offering workplace training, for example. The new duty is considered by an employment tribunal in a successful sexual harassment claim.
What about third-party harassment?
There is no specific claim for third-party harassment in the new Act. Of course, it can impact other areas such as constructive unfair dismissal or harassment claims, plus evidence of a business’s inertia in managing third-party harassment could be used as evidence. Therefore, it is a relevant and important part of an employer’s general anti-harassment strategy.
However, EHRC guidance states that sexual harassment may be committed by:
- another worker
- an agent acting on behalf of the employer
- a third party.
So where do employers stand? Although no specific claim, one should remember the EHRC has increased powers to investigate and bring action against an employer for non-compliance. Moreover, the Employment Rights Bill contains a proposal to bring third-party harassment within the Equality Act 2010 making it clear that employers will need to take all reasonable steps to prevent third-party harassment. Therefore, it would be wise to consider the risk as part of their risk assessment processes and put in place measures to protect workers from third-party sexual harassment.
What are reasonable steps?
Employers will need to risk assess and anticipate different situations where sexual harassment may take place at work and take “reasonable steps” to prevent it before it arises. Although not defined, reasonable steps will vary between employers and will depend on the employer’s size, sector and working environment. Reasonable steps may also vary between different parts of an employer’s business.
What should employers be doing now?
- Engage – boards, senior leaders and HR teams must engage: this is not another “HR thing”. This should be a topic on board agendas. Engage too with your internal stakeholders – employees, employee forums or unions.
- Understand – if you do not understand the risks, how can you take “reasonable steps” to avoid them? Risk assessments are key to unlocking this process.
- Review – analyse your exit data for patterns of behaviours or concerns. Have there been previous complaints raised and how were they handled?
- Policies – raise awareness of internal policies and processes. Ensure key policies are updated and regularly communicated, not hidden in a handbook or intranet.
- Train – targeted (and regularly refreshed) training for leaders, HR and staff populations is essential.
- Raising concerns – it is all very well having a shiny new complaints process (a “hotline” or even a policy for that matter) but not if the workplace culture is one which seeks to hide uncomfortable issues or discourages bystanders speaking up.
- Effectiveness – monitoring the outcomes of the steps you are taking and assessing if they are making a difference in preventing workplace sexual harassment.
Workplace sexual harassment can have devastating consequences for those experiencing it. Now is the time to reflect, engage and create a workplace culture which does not tolerate such behaviours, however uncomfortable confronting this issue might be.
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