Employer's duty to prevent sexual harassment

The new law on preventing sexual harassment in the workplace, states a positive legal obligation on employers to take reasonable steps to protect their workers from sexual harassment in the workplace.

Sexual harassment is unwanted attention that violates a person’s dignity or creates an offensive or degrading environment. It makes the person, or persons, affected feel uncomfortable, threatened or offended. It is the effect that matters regardless of whether or not the effect was intended.

If an employer breaches the new preventative duty, the Equality and Human Rights Commission have the power to take enforcement action against the employer. If an employment tribunal finds that an employer has not taken reasonable steps to fulfil this duty, they have the power to increase compensation for sexual harassment by up to 25%.

A generic, one-size-fits-all approach will not be sufficient under the new law. Instead, employers need to focus on training and risk assessments that truly resonates with teams and addresses the risks of their unique business environment.

The significance of the issue

Sexual harassment in the workplace is a significant issue, and it is a basic human right to feel comfortable and safe in the workplace.

Employees are entitled to be treated with dignity and respect in their place of work, and employers should take a zero-tolerance stance with sexual harassment, and should provide a safe, respectful, and inclusive environment for all employees.

This means freedom from sexual harassment, feeling safe and supported, and having access to redress if such behaviour does arise.

• A TUC report (2021) highlighted 52% of women experienced workplace sexual harassment.
• Nearly two thirds (63%) of women aged 18-24 have experienced workplace harassment.
• 4 out of 5 sexual harassment victims do not have the confidence to report it.
• LGBTQ+ employees face a higher risk of experiencing sexual harassment.
• Industries reporting higher rates of sexual harassment include hospitality, retail, healthcare, and creative sectors.

Executive summary

Key summary to help employers understand their duty under the new law

?1. Taking ‘reasonable steps’

Employees already have a right not to suffer sexual harassment at work and can bring an employment tribunal claim as a result. Employers now have a proactive duty to take reasonable steps to prevent sexual harassment from happening in the first place.

2. Evidence

Employers must be able to clearly evidence the specific steps they’ve taken, and continue to take, to prevent sexual harassment and protect employees from it.

3. Financial consequences

A breach of this duty gives employment tribunals the power to apply an uplift of 25% on any compensation awarded in successful claims. Compensation for harassment claims is already uncapped, so an uplift could have huge financial consequences for employers if they’re found to have breached the duty.

4. Third party harassment

The Act itself does not include reference to employers being liable for the sexual harassment of employees by third parties (such as customers or clients), though the Equality and Human Rights Commission’s (EHRC) technical guidance does refer to employers needing to take steps to protect employees from it.

5. Enforcement action

The EHRC have the power to take enforcement action against employers who do not do enough to prevent sexual harassment. This can include conducting their own investigations, entering into binding agreements with employers to ensure they address the issue (this has taken place with businesses like McDonalds), and taking regulatory action against organisations.

‘Reasonable steps’ in practice

Our recommended practical steps for employers to address as part of taking ‘reasonable steps’ to prevent sexual harassment

• Zero-tolerance?– set a clear and consistent approach to dealing with issues of sexual harassment. Harassment without consequence can breed a culture of acceptance, and potentially hefty tribunal awards. Even with the right policies and training in place, those tasked with dealing with reports and grievances must be empowered and supported to act consistently and take robust action when required.
• Training?–?Up-to-date, meaningful, and robust learning is key to educating and embedding what is and isn’t acceptable behaviour. Training should cover employees at all levels and should be refreshed annually, with good records being maintained.
• Climate survey - conduct a climate survey in October with all employees to help assess the current culture and identify areas of risk. The results of which will help to inform your risk assessment and training.
• Risk assessments?– start by thinking through where and when sexual harassment might occur, who is likely to be the victim (keep an open mind), what preventative measures you already have in place and how you measure the success of your policies. Keep your risk assessment under review.
• Policies?– introduce a standalone sexual harassment policy and ensure employees sign to say they have read and understood it. Bullying, anti-harassment and inclusivity policies musta also be up to date, regularly communicated, and enforced.
• Specially trained individuals?– sexual harassment complaints are hopefully few and far between. For that reason, it’s sensible to select individuals within your company with the right skills to support appropriately when a grievance is raised and to then provide those individuals with extra training in the moment and throughout the year.

Case law

These cases illustrate the impact a new 25% compensation awards will have for sexual harassment claims, reflecting the importance of taking reasonable steps to proactively address workplace sexual harassment.

Owen v. AMEC Foster Wheeler Energy Ltd [2021]

Compensation Awarded: ￡50,000 for injury to feelings, aggravated damages, and financial losses.

Ms. Owen experienced sexual harassment and victimization after making a complaint. The tribunal awarded ￡50,000, including aggravated damages because of the company's dismissive response and attempts to discredit her. The award reflected the seriousness of the harassment and its impact on her career.

X v. Y Limited [2022]

Compensation awarded: ￡42,000 for injury to feelings and psychiatric injury.

The claimant experienced persistent sexual harassment from her line manager, which included inappropriate messages and repeated requests for dates. The tribunal recognized the claimant's psychological distress and awarded significant compensation for injury to feelings and psychiatric harm caused by the harassment.

A v. Bonmarché Ltd [2020]

Compensation Awarded: ￡35,000 for injury to feelings.

The claimant, a retail worker, experienced harassment involving sexually explicit comments and physical contact by a supervisor. The tribunal concluded that the employer did not act on the complaints in a timely manner. Compensation was awarded for injury to feelings due to the prolonged impact of the harassment.

Support

Here's how Instinct HR are supporting their clients

To ensure that our clients are ready for the change in law at the end of this months, we have developed a sexual harassment implementation for our clients to use to help them to take proactive steps to prevent the sexual harassment of their employees. The pack consists of 6 key documents:

1. Employer’s duty to preventing sexual harassment.
2. Manager’s guide to tackling sexual harassment.
3. Training guide for tackling sexual harassment.?
4. Sexual harassment policy.
5. Climate survey.
6. Risk assessment.

Alongside this we are providing hand-on support to help client with the planning process, adapt the documents to meet their unique business needs, whilst supporting the delivery by running training workshops for leaders and managers.

Thank you for reading our article, we hope you found it of value.