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New employer duty to take reasonable steps to prevent sexual harassment in the workplace

Posted on 9 April 2024

From October this year, employers need to be ready to show that they have taken positive steps designed to prevent sexual harassment in the workplace. A failure to do so could be costly – both financially and to the reputation of the employer's business.

This July marks six years since the House of Commons Women and Equalities Select Committee published its Report on Sexual harassment in the workplace (the 2018 Report) in response to the #metoo campaign's calls for action. 

The 2018 Report found that sexual harassment in the workplace was "widespread and commonplace" and the Committee made a number of recommendations ranging from cleaning up the use of non-disclosure agreements to introducing a new duty on employers to prevent sexual harassment supported by a statutory code of practice outlining the steps they can take.

Joanna Blackburn, Mishcon de Reya Employment partner, gave evidence to the Committee and highlighted the "pretty notable gaps" in the application of the existing law. 

The existing law on sexual harassment

The Equality Act 2010 defines sexual harassment as unwanted conduct of a sexual nature which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Employers have a duty not to sexually harass their employees or any job applicants. Employers are also liable for the discriminatory actions of their employees during the course of their employment. It does not matter if the act of sexual harassment is done without the employer's knowledge or approval.  

Employers have a statutory defence in respect of any alleged actions if they can show they took "all reasonable steps" to prevent the employee from doing that action or from doing anything of that description. 

The new mandatory duty

Following the recommendation of the Committee in the 2018 Report, legislation was passed in October 2023 that:

  • Introduces a new mandatory duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment; and
  • Gives the Employment Tribunals the power to uplift compensation awarded by up to 25% if the employer is found to have breached this new duty. It is not obliged to apply the uplift, but if it does so, the Tribunal must take into account the extent to which the employer has failed to meet its duty when determining the percentage uplift to award: if an employer has done very little to comply, it should expect an uplift towards the top end of the scale.

This new mandatory duty will apply to employers from October 2024, but employers should consider putting measures in place now to ensure they are protected.

Code of Practice and Guidance

The Equality and Human Rights Commission has confirmed that it will update its existing Code of Practice and technical guidance on 'Sexual harassment and harassment at work' to reflect this new mandatory duty.

Why is it different?

The existing law on sexual harassment will remain, but instead of merely having the option of relying on a statutory defence,  employers will now also be under a positive duty to take reasonable steps to prevent sexual harassment of their employees. Employees who bring sexual harassment claims in the Employment Tribunal will likely plead in tandem that this new duty has not been met by the employer. The burden is then on the employer to prove this duty has been fulfilled.  

Unlike the statutory defence, the new mandatory duty places a positive and proactive obligation on employers to take "reasonable steps" to prevent sexual harassment. This is a lower bar than the statutory defence requirement of showing they took "all reasonable steps" to prevent sexual harassment. 

Also, and perhaps very significantly, it appears that the new duty does not just apply to preventing harassment by co-workers.  As currently drafted, it would appear that an employee who has a claim against a colleague could also complain that they have been harassed by third parties, and the employer failed to prevent this form of harassment.  This appears to be a major shift in legislation. Since the ability to bring claims for third party harassment was repealed some years ago, it has been very difficult for employees to complain about how they have been treated by customers or members of the public in the course of carrying out their employment duties. 

If an employer has not met the higher statutory defence threshold of taking "all reasonable steps" to prevent sexual harassment, it may still meet the lower threshold of evidencing they took "reasonable steps" to prevent sexual harassment. The employer would then be able to defend the duty to prevent sexual harassment element of the claim but remain liable for the actual sexual harassment element. This would mean the employer would not be subject to the uplift of up to 25% for failing to breach the new mandatory duty.

If an employer meets the statutory defence threshold of taking "all reasonable steps" to prevent sexual harassment, it seems likely, though not guaranteed, that it will have also met the threshold for the new mandatory duty.

What sort of steps will be expected?

The requisite steps will, in part, be determined on a proportionate basis: the larger the employer (and the greater the resources available to it), the more steps will be expected. It is also likely that the Employment Tribunal will take a risk-based approach: employers in certain sectors (notably, hospitality) may well need to take more steps than others, given the greater likelihood of employees facing harassment at work. 

Typically, though, we would expect employers to have policies in place that are well publicised, regularly reviewed and updated. They should also arrange training for their staff and be able to demonstrate that any previous incidents have been handled appropriately. 

What can employers do to show they are taking reasonable steps?

  • Audit existing measures to prevent sexual harassment and review what can be improved;
  • Provide mandatory training for all staff;
  • Conduct an annual staff survey and summarise the results in a report. Monitor and evaluate progress each year;
  • Ensure harassment and sexual harassment policies are effective, easily accessible and regularly reviewed;
  • Ensure that the messages relating to anti-harassment are seen to be coming from the most senior levels of management, and that the 'tone from the top' is consistently supportive of all measures preventing harassment;
  • Have a clear complaints handling process for reporting sexual harassment which identifies specifically trained individuals to report to (whether internal or external);
  • Enforce a zero-tolerance approach;
  • Include training and provide policies as part of the on-boarding process for new staff;
  • Set up a whistleblowing/grievance hotline for individuals to anonymously report alleged incidents;
  • Keep clear records and documentation; and
  • Review existing employment contracts to ensure harassment and sexual harassment policies are referred to.

What next?

In 2021, the Labour party published an Employment Rights Green Paper 'A New Deal for Working People' which details how a Labour Government would strengthen workers' rights. The paper outlines how Labour would tackle workplace harassment and "require employers to create and maintain workplaces and working conditions free from harassment, including by third parties"

If Labour wins the next general election, it may extend the employer's duty to taking "all reasonable steps" to prevent sexual harassment in the workplace and introduce a separate obligation to prevent third party harassment. Both of these provisions were included in the original draft of the legislation but removed after debates in the House of Lords.

Whatever the political landscape at the end of the year, employers who proactively take steps now to prevent harassment will be well placed to meet the coming legislative challenges.

If you would like more information on the employer duty to prevent sexual harassment or advice on what steps you should be taking, please get in touch with your usual Mishcon de Reya contact or with a member of the  Employment team

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