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New duty to help prevent sexual harassment in the workplace

Written by: Gareth Edwards
Published on: 8 Oct 2024
Category:

Talk to the hand

Image © WS Studio 1985 / Adobe Stock

Sexual harassment in the workplace has been an issue for some time, with countless cases being reported in the media – cases that have involved some high-profile individuals.

But beyond the famous, a multitude of cases are regularly happening elsewhere – including in the veterinary profession.

Of course, many employers will have a tried-and-tested approach to dealing with workplace sexual harassment. This is likely to involve staff training, the maintenance of up-to-date policy documentation and an approach to ensuring issues are dealt with robustly when they arise.

However, from 26 October, employers have a new duty and will be required to take “reasonable steps” to prevent the sexual harassment of staff at work. Those that fail to take such steps risk a compensation uplift of up to 25 per cent in the event of a successful claim against them. Given that compensation awards for harassment claims are uncapped, a high cost of failure to comply with the new duty could occur.

In anticipation of the new duty, employers will be wondering whether their existing approach to the management of workplace sexual harassment will be sufficient to comply. The answer is that in many cases, employers need to do more.

But determining what constitutes “reasonable steps” for an employer will depend on individual circumstances. Factors such as the employer’s size, the sector in which it operates, and the way it identifies and manages risks are all likely to be material. To effectively prepare for the new duty, employers should reflect on their current sexual harassment strategy and make improvements where necessary. It is also sensible to make contemporaneous records to explain an employer’s strategy and approach over time. This ensures that appropriate evidence can be presented to a tribunal in the event of a future claim.

Background

Following numerous high-profile cases and campaigns, the Government consulted in 2019 on a proposal to reform the law in this area. This consultation prompted the Government to introduce a new duty for employers to take “all reasonable steps” to protect workers from sexual harassment in the workplace.

The resulting Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a mandatory duty to protect staff from workplace sexual harassment.

It contains no express protection against harassment by third parties, although this is not to say that employers should not consider any particular risk posed to their staff by third parties at work.

New mandatory duty

The act introduces a mandatory duty on employers to take “reasonable steps” to prevent sexual harassment of employees in the course of their employment. The mandatory duty is a much broader duty than any other obligation existing under current anti-harassment law.

The question of what will constitute “reasonable steps” for any individual employer merits careful consideration and will depend on factors such as the type of organisation and the harassment risks that are present at that workplace.

Changing defence

Employers and HR professionals might be aware that under existing law, there is a potential defence available to employers facing harassment claims, where the employer can show they took “all reasonable steps” to prevent the employee from carrying out the harassment. Where the reasonable steps defence succeeds, the employer will escape liability, leaving the harasser potentially personally liable if they have been named as a respondent in the litigation.

The new mandatory duty is different from the existing reasonable steps defence. The reasonable steps defence applies in a much narrower context, like in demonstrating that an employer took necessary action to prevent a particular employee from displaying a particular behaviour.

In contrast, the mandatory duty will apply on an organisation-wide basis to all employees and is likely to call into question the organisation’s culture and approach more generally.

Third-party harassment

Employers should note that although the explicit third-party harassment provisions were removed from the act, the new mandatory duty may still encompass a requirement to manage the risk of third-party harassment where relevant. Again, the requirements of any given organisation will depend on the particular risk of staff being exposed to third-party harassment at work.

Employers should therefore consider the risk of third-party harassment as part of the general requirement to comply with the mandatory duty.

Enforcement

The new mandatory duty will be enforced in two ways. Either the employment tribunal may apply a compensation uplift of up to 25 per cent for breach of the mandatory duty in successful sexual harassment claims, or the Equality and Human Rights Commission (EHRC) will be able to take direct enforcement action against employers who breach the mandatory duty.

In terms of the compensation uplift, to pursue an employer for breach of the mandatory duty, an employee will need to bring a successful harassment claim under the Equality Act. If that claim succeeds, a tribunal may apply the compensation uplift at an appropriate percentage to reflect the extent to which the employer has breached the mandatory duty.

A tribunal may be likely to apply the compensation uplift precisely because, for the claim to succeed in the first place, the employer will either have failed to invoke the reasonable steps defence or will have been unsuccessful in doing so. If an employer has failed in the reasonable steps defence, it is likely to also fail to show that it has complied with the mandatory duty.

In real terms, the practical impact of the mandatory duty is likely to be a compensation uplift of up to 25 per cent in almost any successful sexual harassment claim. Given sexual harassment is a claim for which a tribunal has the power to award unlimited compensation, a failure to comply with the mandatory duty could prove very costly.

EHRC enforcement action

The EHRC has the power to investigate alleged non-compliance with equality law. In the event of a breach, the EHRC can issue notices to organisations in relation to their unlawful acts. A notice would require the organisation to prepare a draft action plan setting out how it will remedy its breach. The EHRC may approve the plan or require improvements to be made to it.

The EHRC takes enforcement action against individual employers rarely, but may do so in the event of serious breaches of equality law. The EHRC is the only entity able to bring stand-alone enforcement action against an employer for failing to comply with the mandatory duty. As employees will need to first bring a successful sexual harassment claim before accessing the compensation uplift, they will not be able to enforce the mandatory duty without also having suffered harassment.

Summary

Employers need to take notice and recognise their new duty. It is going to be enforced and employers ignoring the law could find themselves paying for expensive awards made against them.