New duty to prevent sexual harassment in the workplace

Worker Protection (Amendment of Equality Act 2010)?Bill strengthens the protections for workers against sexual harassment. From 26th October 2024 a new duty is in place for employers to take ‘reasonable steps’ to prevent sexual harassment. Tribunals will have the power to increase compensation by up to 25% if they find an employer has breached this duty.?

But how does all this fit into the existing legal framework, what has actually changed and weren't employers already obliged to safeguard employees against harassment?

What is Harassment??

Harassment is a type of discrimination and legally sits alongside direct discrimination, indirect discrimination and victimisation. Employees are protected against harassment linked to most protected characteristics including harassment based on race, sex and disability among others. There are several myths around harassment including that a single incident cannot be harassment, that comments non meant in bad faith don’t constitute harassment, and that harassment must be directed at an individual specifically for them to be able to complain. All of these are false.?

• Legal Definition?

The legal test for harassment is found in section 26 of the Equality Act 2010 and sets out: that:?

“A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:?

? Violating B's dignity, or?

? Creating an intimidating, hostile, degrading, humiliating or offensive environment for B”?

The definition will capture singe comments that are unwanted, related to a protected characteristic and have the effect of creating a humiliating environment for example. The purpose of the harasser is irrelevant, if the effect has been felt by the victim. The comments / behaviours don’t have to be directed to an individual as long as the unwanted conduct is related to a protected characteristic. Effectively, a lot of conduct can be caught by this definition and while there is a very thin line between unwanted conduct and banter, relying on banter does not mitigate harassment.??

• Sexual Harassment?

There is also an additional type of harassment referred to as “sexual harassment” which covers harassment of sexual nature (but not necessary aimed at one gender, hence potentially not falling under sex harassment or sex discrimination). Contrary to be common belief this doesn’t only cover physical conduct, but can capture anything from comments, gestures, social media posts, email, and even suggestive looks and staring. Neither does the conduct have to be directed at the individual if it creates an offensive work environment.?

Harassment Claims?

For an employer to defend a claim of harassment, it can either challenge the employee’s account of events, argue that what happened does not meet the legal definition of harassment or show that the company took all reasonable steps to prevent harassment.?

• All Reasonable Steps Defence?

Employers cannot control actions of every employee and sometimes harassment may occur during employment despite the employer doing everything possible to prevent it; if that’s the case the company will not be liable, but this is a high bar, and it is extremely difficult to run this defence successfully.??

Up to date relevant policies that don’t just exist on paper but are regularly used in practice, relevant and up to date training that includes harassment, and dealing with complaints effectively will all go a long way in showing steps were taken to prevent, but large employers will be expected to do more than small employers.?

• New Statutory Duty to Prevent Sexual Harassment?

The new legal duty comes in place in October 2024, covers sexual harassment in particular, and places a proactive duty on employers to take reasonable steps to prevent sexual harassment in the workplace.?

This means that if an employer loses a sexual harassment claim, then the tribunal can add a 25% uplift to any compensation, which is unlimited in harassment claims. As such non-compliance with the new duty will imposes a financial penalty.?

What should you do??

All employers should always aim at being able to provide a very strong “all reasonable steps” defence in any harassment claim, but this can be a very high bar to successfully convince the tribunal you’ve done everything possible in your power to prevent harassment.?

While aiming for the above to be achievable, employers should put extra thought into reasonable steps that can be taken to prevent sexual harassment in particular. Importantly any such steps must be taken before the events complained about, so taking action promptly is advised. You should start by assessing the risks and what steps would reduce the identified risks. You would then decide which steps are reasonable and implement them. Some areas that should be addressed:?

• Risk assessment?

• Updating all related policies and implementing any missing policies?

• Implementing a clear process for raising concerns and complaints?

• Updated training to all staff on harassment?

If you require more information on any of the above or would like help with the suggested next steps please get in touch.