Employers to face new duty to prevent sexual harassment
Last month the Worker Protection (Amendment of Equality Act 2010) Bill received Royal Assent. The Act will come into force in October 2024. In brief, this new Act amends the Equality Act to impose a new duty upon employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment (s.1) . It also provides that an award of compensation for sexual harassment can be increased by up to 25% at the final hearing at tribunal (s.3).
However, somewhat confusingly, the Equality Act 2010 already provides that workers are protected against sexual harassment committed by employers or employees. So, what is new and why is this piece of legislation likely to be important?
What is sexual harassment?
Sexual harassment is defined by s.26(1) of the Equality Act 2010 as:
conduct which occurs when a person engages in unwanted conduct related to sex and the conduct has the purpose or effect of either violating the other person’s dignity, or creating an intimidating, hostile degrading, humiliating or offensive environment.
In deciding whether the conduct has that effect, an Employment Tribunal would consider:
(a) the recipient’s perception of the conduct
(b) the overall circumstances of the case and
(c) whether it is reasonable for the conduct to have that effect.
The type of behaviour that can be included within this is very wide and can include jokes, cat calls, wolf whistling, groping, displaying sexually inappropriate pictures or material, as well as sexual advances. It can also include asking intrusive questions about a person’s sex life or someone discussing their own sex life. The key point is that the conduct is unwanted and the effect it has upon the victim.
Recent Reports on Sexual Harassment in the workplace
Recent reports and studies have shown that sexual harassment in the workplace is a very significant problem. We have seen high profile examples of sexual misconduct at the CBI and NHS. The RAF Red Arrows are the latest to be reported as having a culture of sexual harassment and misconduct.
Tracking Sexual Harassment in the Workplace
In 2021, The Fawcett Society published a report called Tackling Sexual Harassment in the Workplace.
This report said that there needed to be a rethink about how sexual harassment in the workplace was dealt with – to undermine the “banter” culture.
Their report stated that 40% of women had experienced workplace harassment, rising to 68% for disabled women. 45% had been sexually harassed online and 68% of LGBT workers had been victim to some form of harassment in the workplace.
The obligation for responding to such behaviour fell to the victims, whose main form of redress would be to issue Employment Tribunal proceedings, with the attendant costs risks and stresses associated with that. Their recommendation was to introduce cultural change so that employers become responsible for ensuring safe workplaces.
What is new in The Worker Protection (Amendment of Equality Act) Act?
This new Act does not create a new category of protection. Sexual harassment has been unlawful for several years.
In summary, the amendment now places a duty on employers to take “reasonable steps” to prevent sexual harassment of their employees.
Imposing a proactive duty on employers may lead to a cultural change. As a result, this could mean that victims would not have to take legal action. If an Employment Tribunal finds that an employee has been sexually harassed, and the employer had not taken reasonable steps to prevent it, then the Tribunal can order an uplift on the compensation awarded of up to 25% of the amount awarded.
In reality, what it is likely to mean is that victims of sexual harassment (most likely women) will still need to pursue their claims through the Employment Tribunal (assuming they cannot settle with the employer or ACAS pre-proceedings) but will be able to plead in addition to the particular individual facts in their case that the employer had not taken reasonable steps to prevent sexual harassment in the workplace, which would be a much wider subject for consideration and potentially harder for employers to defend because the burden of proof will be on the employer to demonstrate what they had done to tackle sexual harassment.
Does the amendment go far enough?
The Bill as originally proposed was also going to provide protection to employees against sexual harassment from third parties. For example, customers, clients and so on. It planned to effectively restore the third-party liability protections that were repealed in 2013.
Similarly, the initial wording proposed that employers would be subject to a duty to take “all reasonable steps” to prevent sexual harassment.
However, neither of these proposals survived the House of Lords.
What should employers do to prepare?
The issue for employers now is to prepare for October 2024.
- ensuring that they have policies to prevent sexual harassment in place
- training staff on what is not acceptable behaviour.
Downloading a policy from the internet to “tick the box” will not be enough. Employers of all sizes will need to introduce an appropriate policy and educate their employees accordingly.
An employer that fails to take such action is likely to receive an increased tribunal award. Furthermore, they may also potentially be investigated and then named and shamed by the EHRC.
At Crane & Staples, we have significant experience in employment law for employers and employees.
We can advise and guide employers on preparing for the new Act. This includes helping to produce a comprehensive sexual harassment policy. We can also assist employees or employers taking legal action in a sexual harassment case.