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Sexual harassment | What employers need to know about the new statutory duty
Written by Lorna Gemmell on 9 September 2024
As an employer, one of your most important responsibilities is to protect and safeguard your workforce from harm. This includes preventing sexual harassment in the workplace.
From 26 October 2024, employers will be under a new statutory duty to take “reasonable steps” to prevent sexual harassment. Failure to comply with this duty could lead to enforcement action by the Equality and Human Rights Commission (EHRC) and any employee succeeding in a sexual harassment claim could have their compensation increased by up to 25%.
In this blog, we will recap current sexual harassment laws, explain what’s changing, and outline the steps organisations should take to ensure compliance with the new duty.
What are the current harassment laws in the UK?
In the UK, sexual harassment is unlawful under the Equality Act 2010.
This area of employment law protects workers at all stages: when applying for a job, during their employment, and in some cases after employment has ended, such as when providing verbal or written references.
As well as bringing a claim under the Equality Act, liability for sexual harassment can also arise under other legal duties that underpin the employment contract, such as the duty of care and the duty of trust and confidence (possibly leading to a constructive dismissal claim).
Additionally, under the Protection from Harassment Act 1997, harassment is both a criminal and civil offence, allowing individuals to be prosecuted in criminal courts. Therefore, it is crucial for employers to understand that individuals can be personally liable for acts of sexual harassment and may face criminal proceedings.
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How does the Equality Act define harassment?
Sexual harassment is defined as:
- Unwanted conduct of a sexual nature;
- Which has the purpose or effect of:
- Violating a person’s dignity, or
- Creating an intimidating, hostile, degrading, humiliating, or offensive environment for that person.
An additional form of harassment under the Equality Act covers or conduct related to gender reassignment or sex (although the duty does not apply to this type of harassment). Notably, it is not limited to initial unwanted advances but also any subsequent behaviour stemming from the acceptance or rejection of those advances.
Harassment can be a single incident or an ongoing pattern, and it may take many forms, including:
- Verbal comments, jokes, or ‘banter’ of a sexual nature
- Sexual nicknames or gossip
- Inappropriate questions or intrusive comments relating to sex
- Unwanted physical contact or touching
- Coercion, such as threats of dismissal or loss of promotion
Sexual harassment can be intentional or unintentional; what largely matters is the impact on the complainer, not just the intent of the alleged harasser, although the impact must be reasonable in the circumstances.
The behaviour does not need to be directed towards a specific individual for them to be able to raise a sexual harassment claim. For example, an employee who overhears sexual comments directed at a colleague can also bring a claim if the conduct negatively impacts their dignity at work. Similarly, the display of pornography or other sexualised images in the workplace could amount to sexual harassment.
In Tribunal cases, judges assess:
- The complainer’s perception of the conduct;
- The alleged harasser’s intention;
- The circumstances of the case; and
- Whether the impact on the complainer was reasonable.
The EHRC consulted on amendments to its technical guidance for employers, in order to implement the new duty. The consultation closed on 6 August and it is expected that the updated technical guidance will be finalised before the introduction of the new duty coming into force in October.
It would be sensible for employers to start preparations for the new duty now and not wait for the final version of the updated guidance, as it is likely that the updated guidance will be very similar to the current draft guidance. The current EHRC guidance is available below:
Reasonable steps
The term “reasonable steps” is subject to interpretation, and its meaning may become clearer as legal cases develop. However, to meet this new legal duty effectively, employers should ensure they are taking steps such as:
- Conducting risk assessments to identify potential sexual harassment risk factors (and acting on the results)
- Providing meaningful training for staff and managers on sexual harassment at regular intervals
- Developing, communicating and enforcing anti-harassment policies
- Establishing clear reporting procedures, providing a range of options for reporting
- Implementing measures to prevent third-party harassment (i.e. harassment by a person who the employee comes into contact with as part of their duties but who isn’t a direct colleague, e.g. customers, clients, guests, etc.)
- Regularly monitoring and reviewing grievance and disciplinary processes for effectiveness
- Ensuring thorough and prompt investigations by suitably trained managers
- Taking appropriate actions based on findings
- Cultivating a supportive workplace culture with a zero-tolerance approach to sexual harassment
- Planning events thoughtfully to mitigate risk
These steps will help employers to ensure compliance and maintain a respectful work environment. The good news is that employers who are already dedicated to strong employment practices, especially in preventing discrimination and harassment, may find that only minor adjustments are needed. For those employers who currently take a more passive approach to managing sexual harassment risks, there will be work to be done.
What about third-party harassment?
Employers must also be mindful of sexual harassment committed by third parties. As above, a third party is someone who an employee comes into contact with as part of their duties but who isn’t a direct colleague, such as a customer, service user, or member of the public.
The original version of the Worker Protection Bill contained specific provisions in relation to third-party harassment, but as the Bill went through the legislative process, these provisions were removed.
However, the updated EHRC guidance states that the preventative duty applies to actions of an employer’s own employees and also third-parties. This means that third-party harassment remains an important issue that should be a focus of employers’ attention, particularly for those whose business involves significant client interaction.
Employers should:
- Evaluate the potential for third-party harassment and implement appropriate measures based on the nature of interactions with these third parties. This should be done using a sexual harassment risk assessment so that the process is documented for transparency and evidence.
- Include guidelines in your anti-harassment policies about how to handle third-party harassment, including how employees should respond and how to file a complaint.
- Take all instances of third-party harassment seriously and ensure they are addressed promptly and appropriately.
- Regularly review and assess the effectiveness of your measures, and be prepared to make adjustments as needed.
What about other types of harassment?
The new duty only applies to sexual harassment and not to other types of harassment under the Equality Act, including harassment relating to a protected characteristic. Interestingly, this will be the first time that the liability and penalties for the different types of harassment will diverge. Some might wonder why employers who fail to tackle sexual harassment should be more severely punished than those who fail to tackle, say, race harassment.
It should be noted that employers can defend claims of all forms of harassment under the Equality Act by showing that they have taken all reasonable steps to prevent the behaviour, or similar behaviour, from occurring. The steps that will be required to satisfy that defence are very similar to the steps that will be required under the new sexual harassment duty. Employers would therefore be advised to consider the steps that discussed above in relation to the other forms of harassment under the Equality Act as well from a risk mitigation perspective.
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