Previously businesses paid lip service to the notion of protection from sexual harassment by providing staff with anti-harassment policies that then gathered dust until the first formal complaint was made.
The new mandatory duty to prevent sexual harassment in the workplace is meant to change all that.
Equality Act 2010
The current law protects individuals from unwanted behaviour of a sexual nature that violates their dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment. Various examples of this unwanted conduct include:
Businesses have always recognised the importance of preventing sexual harassment to avoid costly settlements and litigation, reputational damage, adverse effects on recruitment and employee retention and regulatory consequences. Whilst they have avoided liability by relying on the statutory defence and showing they have taken ‘all reasonable steps’ to prevent the harasser from committing sexual harassment, more often than not they are left dealing with the consequences of the workplace attitudes and behaviour that have led to the harassment, than taking the proactive steps necessary to prevent it in the first place.
Worker Protection (Amendment of Equality Act 2010) Act 2023
The new law comes into force on 26 October and places a new positive obligation on businesses to take reasonable steps to prevent sexual harassment of their staff in the course of their employment, by anticipating scenarios which pose a risk of sexual harassment occurring and having measures in place to prevent it.
So what are those reasonable steps?
Helpfully the Equality and Human Rights Commission (‘EHRC’) has prepared updated guidance on this question. As is the case with a lot of employment law legislation, a business’ size, sector and resources will be taken into account in determining the scope and extent of steps taken.
First, businesses should carry out regular staff surveys and a risk assessment of their workplace with an eye on potential trigger areas such as:
Next, businesses should consider reasonable steps and their implementation.
Examples are:
Businesses should also consider the risk of sexual harassment by third parties (i.e. customers, suppliers, service users, patients, friends and family of colleagues, conference delegates and members of the public) as the preventative duty will extend to them.
Reasonable steps may require a business to consult with its staff and adopt a zero-tolerance policy that is properly communicated and understood by staff and third parties, with a protocol setting out how reports of third-party harassment will be dealt with.
EHRC
Even though there is no liability in the courts for third-party harassment, the EHRC can now take enforcement action against the business that has failed to comply with the preventative duty (this doesn’t depend on the sexual harassment taking place). These powers include the ability to:
Employment Tribunal
Another legal consequence is the power of the Employment Tribunal, if they find sexual harassment has been committed against a worker, to consider whether this preventative duty has been breached and to increase compensation by up to 25% if it has.
By way of an example, there may be a technical breach but the extent of this breach is limited: the business has anti-harassment policies that are communicated to staff through regular training but the effectiveness of the policies and training has not been reviewed for several years. In such a case, the Tribunal may order the business to pay a 10% rather than 25% compensation uplift.
Conclusions
The standout developments from this legislation are the new enforcement powers given to the EHRC and Employment Tribunal and the extension of the duty to prevent sexual harassment by third parties, the main beneficiaries of which are likely to be in the retail and hospitality sectors where so many workers are in customer-facing roles.
However, all businesses should take note of this proposed change in the law and ensure that their policies and procedures are up to date. The benefits to be gained are considerable, not least the promotion of a culture of fairness and well-being and the reduction of workplace disputes.
Our specialist team at iLaw is available to guide you through these complex issues and advise and represent you swiftly and decisively when problems arise.
For further information please feel free to contact Rachel Lester, Head of Employment, on +44 (0)7394 802375 and at Rachel.Lester@ilaw.co.uk.
