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How is the law changing on sexual harassment in the workplace?

New legislation has been passed to introduce a duty for all employers to take reasonable steps to prevent sexual harassment of employees in the course of their employment.

The Worker Protection (Amendment of Equality Act) Act will increase an employer’s obligations to protect its employees against sexual harassment. Currently, there is a potential legal defence to a harassment claim if an employer can demonstrate they have taken all reasonable steps to prevent it from happening. The new legislation takes this further by putting a legal obligation on employers to take proactive steps to prevent sexual harassment.

What is the background to this?

Following a consultation exercise, the Government confirmed in July 2021 that it would introduce a new proactive duty on employers to prevent sexual harassment in the workplace.

There has been a cultural change, which began with the #MeToo movement. This has led to a shift in the way allegations of sexual harassment are regarded by society with the consequence of more employers dealing with this robustly and proactively.

McDonalds is one of the latest businesses to face media scrutiny and reputational damage following a BBC investigation that revealed allegations of “a toxic culture of sexual assault, harassment, racism and bullying, with workers as young as 17 being groped and harassed “almost routinely””.

When does the law change?

This change comes into force around October 2024.

Who does if protect, and against what?

The new legislation was primarily introduced to protect women. In 2021 the Fawcett Society reported that 40% of women experience sexual harassment in their working lives. Although, all genders are at risk of sexual harassment and protected under the new legislation against unwanted conduct of a “sexual nature”.

How is sexual harassment defined?

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

Where would an employee make a claim?

Claims for breach of this duty may be made in the Employment Tribunal, but must be attached to a claim for sexual harassment, so this is not a free-standing claim. Under the new rules, claimants may add a claim against the employer for a breach of the duty to take reasonable steps to prevent sexual harassment.

What happens if an employer gets this wrong?

Employers breaching the new duty could be subject to enforcement action by the Equality and Human Rights Commission and/or an uplift of up to 25% in any compensation awarded if a tribunal finds that an employee has been subjected to sexual harassment and the employer failed to take reasonable steps to prevent it.

What are ‘reasonable steps’?

The legal duty only refers to ‘reasonable’ steps. Clearly an employer cannot control the behaviour of its staff at all times, but the law demands reasonable, proactive steps.

Initially, the legislation was drafted to include that an employer should take all reasonable steps to prevent sexual harassment. However, the final legislation was watered down by removing the word “all”.

The Act itself doesn’t spell out what “reasonable steps” are. The Equality and Human Rights Commission’s (EHRC) technical guidance on sexual harassment and harassment at work is due to be updated to reflect the new duty, setting out the steps that employers should take.

In the meantime, as a minimum, employers should be introducing and updating policies and procedures dealing with harassment, making these available to staff and supporting them to speak up about sexual harassment, along with providing relevant, regular training to staff members.

Where are we now with harassment by third parties?

The House of Lords voted to remove a clause in the draft legislation that would have restored the third-party (such as customers or clients) harassment provisions in the Equality Act 2010 which were repealed in 2013. The amendment was accepted by the House of Commons.

Despite this, employers may still be liable under the existing legislation if they fail to adequately deal with complaints from employees relating to third party harassment. EHRC guidance already states that third-party harassment should be addressed in policies. Furthermore, if the Labour party wins the next general election, it has indicated a move to re-introduce statutory liability for third party harassment.

What might ‘reasonable steps’ look like in different sectors?

Each sector and individual workplace is different, with different risk factors, and therefore potentially different ‘reasonable steps’ to mitigate.

There are some strong arguments to manage the new duty to prevent sexual harassment using a risk assessment approach as you would do with another health and safety workplace risk, considering closely the risk factors, and mitigation. Risk factors might include, for example: environments where alcohol is present, attending visits or meetings alone, social events, environments with high pressure to keep key customers happy (including where pay/ commission is closely linked to that), and/or knowledge of previous complaints from a particular source.

There are other higher risk factors for sexual harassment taking place:

  • There is a higher risk of sexual harassment for employees with intersecting / multiple strand discrimination factors such as race, disability, sexuality, and age. It should be understood that sexual harassment can cause compounded harm to employees who may already be marginalised.
  • Research has also found sexual harassment prevalence to correlate with other existing gender inequalities in a workplace, such as gender pay gap, male-dominated senior leadership, a culture of different genders performing certain jobs, and sexist ‘banter’.

How can employers drive forward culture change on this subject?

The best employers will be doing far more than updating policies and procedures. Other action could include:

  • Consult and involve staff in a safe space – looking at how you can create a genuine “speak-up” culture
  • Senior leadership pushing it up the agenda – for example appointing one senior manager to drive delivery
  • A more thorough review of policies and procedures – ensuring there are clear standards and communication of expectations
  • Regular training (not just a one-off) – for managers and other employees
  • ‘No tolerance’ communications to contractors, freelancers or similar
  • Review and update central reporting procedures for harassment
  • Deal with every complaint seriously, promptly and confidentially
  • Take appropriate disciplinary action – a robust and accountable approach should reduce the likelihood of recurrence and is (of itself) a reasonable step in the context of any future complaint(s)
  • Monitor the understanding of policies, and the effectiveness of protective measures within them
  • Carry out risk assessments to identify the specific risks in your workplace and how you will mitigate
  • Communicate a zero tolerance approach to customers/clients, which may include signage
  • Gaining a better understanding of who (which groups) are at higher risk in your workplace (see above on higher risk factors)
  • Other work on addressing existing gender inequalities in your workplace, such as female progression to senior leadership, managing maternity and the return to work more successfully, as well as reducing a gender pay gap.

The Stephens Scown Employment team are experienced in dealing with these issues for both employers, and for individuals subjected to sexual harassment in their work. We can assist employers who wish to drive culture change on this subject, starting with policy work and delivering training as core actions. Our experienced litigators can also assist individuals and employers to deal with related claims.