Employment Law Digest August – New duty to prevent sexual harassment

This introduces a new duty on employers to take reasonable steps to prevent their workers from being sexually harassed (the ‘preventative duty’) by other employees and third parties.  If a worker successfully brings a sexual harassment claim and the duty has not been met, the worker’s compensation could be increased by up to 25% as a result of non-compliance..

The preventative duty and its application to third parties represent significant changes which mean that all employers will have to take steps to minimise the risk of sexual harassment.

What is the current law?

Section 26 of the Equality Act 2010 defines harassment as unwanted conduct which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for a person.  The Act prohibits three types of harassment:

1. Harassment on the grounds of a protected characteristic, including sex;
2. Unwanted conduct of a sexual nature which has the purpose or effect of harassment (sexual harassment); and
3. Less favourable treatment that is done because the person rejected or submitted to the unwanted conduct.

Sexual harassment can include sexual jokes, unwelcome hugging, propositions and intrusive questions about a person’s sex life.  A person can be sexually harassed by someone of the same or opposite sex.

Under the current legislation employers can be vicariously liable for the actions of their employees or agents (but not third parties) which is done in the course of their employment but it can defend such claims if they have taken reasonable steps to prevent the harassing employee from acting unlawfully.

Why is the law changing?

In March 2018 the Equality and Human Rights Commission (EHRC) reviewed the current legislation and concluded that the current protection was insufficient to protect workers from sexual harassment and made recommendations, including a mandatory duty on employers to take reasonable steps to prevent sexual harassment.  In July 2018 the Women and Equalities Select Committee also produced a report and agreed with the recommendation to include a mandatory duty.  In May 2023, the Trades Union Congress reported that 39% of workplace sexual harassment had been committed by a third party.

What is changing?

The preventative duty only applies to sexual harassment. It does not cover harassment related to a protected characteristic (including sex), nor does it apply to less favourable treatment for rejecting or submitting to unwanted conduct.

The duty requires that employers should anticipate scenarios when its workers may be subjected to sexual harassment in the course of employment and take action to prevent such harassment taking place.  If sexual harassment has already taken place, an employer must take all reasonable steps to ensure that it does not happen again.  Crucially, the new duty extends to prevent harassment from third parties.

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Workers cannot bring a claim purely because an employer has breached the preventative duty.  However, if there is a successful claim for sexual harassment, an employment tribunal must consider whether the duty has been breached and, if it has, it can increase compensation by up to 25%.

The legislation confirms that the EHRC has powers of enforcement in relation to the positive duty.  In addition to producing statutory guidance, the EHRC also has power to:

• Investigate an employer
• Issue an unlawful act notice if the employer is or has been the subject of an investigation confirming that it has found an employer has breached the Act and requiring the employer to prepare an action plan setting out how it will remedy any continuing breach of the law and prevent future breaches
• Enter into a formal, legally binding agreement with an employer to prevent future unlawful acts
• Ask the court for an injunction to restrain an employer from committing an unlawful act

The preventative duty does not depend upon an incident of sexual harassment taking place to be enforceable by the EHRC.

What constitutes ‘reasonable steps’ to prevent sexual harassment?

What is deemed reasonable will depend on an employer’s size and resources, what type of industry it operates in and whether staff work with third parties such as customers, suppliers, patients, families, friends, conference delegates etc. The following may constitute reasonable steps however the exact steps will require individual consideration:

• Conducting a risk assessment to understand the risk of staff being exposed to sexual harassment and taking action to reduce those risks
• Checking previous complaints of sexual harassment and considering what steps can be taken to prevent a recurrence
• Updating policies and procedures to clarify the law, expectations of staff and how complaints can be raised
• Training staff, including managers, to raise awareness
• Specific training for managers so that they understand how to support workers who complain of sexual harassment
• Putting in place procedures to ensure that training is regularly updated and refreshed
• Informing third parties of the policies and behavioural expectations

The ECHR has produced draft technical guidance which currently being consulted upon so it may be that further guidance is issued once the consultation has concluded.

The preventative duty and its application to third parties represent significant changes which mean that all employers will have to take steps to minimise the risk of sexual harassment.

We will be running a webinar on this topic in the near future but please contact Rachel Blythe if you require support to comply with the new duty.