Sexual Harassment in the Workplace: A New Legal Duty for Employers

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What is sexual harassment?

The Equality Act 2010 (“EqA 2010”) outlines that sexual harassment occurs where a person engages in unwanted conduct of a sexual nature which has the purpose or effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

This definition captures a wide range of behaviours including verbal, non-verbal and physical conduct such as sexual comments, jokes and gestures; intrusive sexual questions; sending sexually explicit messages or pictures and unwanted touching. As with other forms of harassment, the perpetrator does not need to intend for their conduct to be offensive nor does the complainant need to have expressly objected to it for it to be considered “unwanted”. Moreover, a single incident can be sufficient to constitute sexual harassment.

The current legal position

The EqA 2010 already prohibits sexual harassment in the workplace as well as less favourable treatment because a worker rejects or submits to unwanted sexual conduct. Workers who are sexually harassed at work may bring a claim against their employer in the Employment Tribunal, as employers are generally liable for the acts committed by their staff during the course of their employment. This is the case even where the employer is unaware or disapproving of the harassment.

However, employers are able to defend sexual harassment claims where they can show that they took all reasonable steps to prevent the harassment from occurring. The existing guidance published by the Equality and Human Rights Commission (EHRC) suggests that, in order for an employer to have taken all reasonable steps, they must have implemented preventative measures and there must be no further steps which they could reasonably have been expected to take in order to prevent the harassment.

The new legal duty for employers

On 26 October 2024, through the Worker Protection (Amendment of Equality Act 2010) Act 2023, a new legal duty will come into force which will require employers to take reasonable steps to prevent sexual harassment in the workplace. This new preventative duty will require businesses to take a proactive, prevention-orientated approach to stopping sexual harassment by fostering an inclusive working environment with a zero-tolerance attitude to sexual harassment.

The new duty will apply to preventing sexual harassment by the employer’s own staff as well as by third parties, such as their clients and customers.

Ahead of the new duty taking effect, the EHRC have recently updated their guidance to include an eight-step guide designed to help employers ensure that they comply with their new obligations. The eight steps outlined are:

  1. Developing an effective anti-harassment policy;
  2. Engaging with staff;
  3. Assessing and taking steps to reduce workplace risk;
  4. Reporting;
  5. Training;
  6. Handling harassment complaints;
  7. Dealing with third-party harassment; and
  8. Monitoring and evaluating actions.

Compliance with the new preventative duty

The EHRC guidance specifically describes the new duty as being “preventative” in both an anticipatory and ongoing sense. In particular, it warns that employers “should not wait until a complaint of sexual harassment has been raised before they take any action” but “if sexual harassment has taken place, the preventative duty means an employer should take action to stop sexual harassment from happening again”. In this way, employers are expected to take active steps to prevent sexual harassment from occurring in the first place and to implement further measures to prevent it from happening again where it does occur.

What constitutes a “reasonable” step will vary between employers depending on factors such as their size and resources, industry sector, the risks present and the time, cost and potential disruption of taking that step. The EHRC guidance strongly suggests that employers should conduct a risk assessment to identify potential risks and then implement controls to minimise those risks.

Common risk factors may include power imbalances, socialising outside of work (especially where alcohol is involved), social media contact between staff and a particular workplace demographic, such as a male-dominated working environment.

Reasonable steps to mitigate these risks may include introducing or updating policies and procedures, making adjustments to the working environment and checking that employees understand how to report sexual harassment and management staff understand how to deal with complaints. In this regard, specific training – including regular refresher training – is likely to be helpful to ensure that management staff are aware of employee’s rights and know how to respond appropriately to complaints of sexual harassment.

Consequences of non-compliance

The EHRC guidance clarifies that the new preventative duty is separate to the “all reasonable steps” defence in the EqA 2010 – although they will inevitably share many similarities.

Although a worker will not be able to bring a claim for a breach of the new preventative duty alone, an Employment Tribunal may increase the value of any compensation payable to them by up to 25% to reflect that an employer has not taken reasonable steps to prevent sexual harassment from occurring. In addition, it is unlikely that an employer which does not satisfy the duty to take reasonable steps will be able to rely on the “all reasonable steps” defence given that “all reasonable steps” is a higher threshold.

Separately, the EHRC will have the power to take enforcement action against any employer which does not comply with the new preventative duty. This may include an investigation and issuing an unlawful act notice requiring any breaches to be remedied.

This is, of course, in addition to the reputational consequences associated with sexual harassment findings which can adversely impact employee retention and customer relations. For some employers, for example in the financial services sector, there may also be regulatory consequences.

It is therefore very important that all employers prepare for the new preventative duty now to avoid any adverse repercussions once it comes into effect.

The Taylor Walton Employment Team is able to offer advice and training for Employers on the new preventative duty, the undertaking of risk assessments and handling complaints – please see our contact details here.

A link to the updated EHRC guidance can be found here: Sexual harassment and harassment at work: technical guidance | EHRC (equalityhumanrights.com).

Disclaimer: General Information Provided Only
Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.

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