The current position
Under the Equality Act 2010 (EqA 2010), sexual harassment occurs where an individual engages in unwanted conduct of a sexual nature and the conduct has the purpose or effect of either (i) violating an individual’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment.
An employee that is sexually harassed at work may bring an employment tribunal claim against their employer (in addition to or instead of bringing a claim against their harasser).
The employer’s defence (under section 109(4) of the EqA 2010) is that the employer has taken ‘all reasonable’ steps to prevent the harassment from taking place. Demonstrating that ‘all’ such steps have been taken is, in practice, a difficult exercise and leaves employers vulnerable to successful claims.
A new duty to prevent sexual harassment
The Worker Protection (Amendment of Equality Act 2010) Act 2023 (“the Amendment“) received Royal Assent in October 2023 and will come into force in October this year. It introduces new wording into the EqA 2010, imposing an express obligation on employers to take ‘reasonable steps’ to prevent sexual harassment of their employees.
The Amendment – a lower threshold?
The new duty, a proactive obligation to prevent sexual harassment in the workplace, must be attached to a claim for sexual harassment, so it does not present a new category of protection in its own right. Therefore, it is not a standalone claim that an employee can bring against their employer. However, it is worth noting that a standalone complaint could be made to the Equality and Human Rights Commission (“EHRC“) who then have the discretion to investigate, possibly take enforcement action against the employer and publish information on the case.
Unlike the existing section 109 defence, the defence to a breach of the new duty is that the employer took ‘reasonable steps’ to prevent the harassment. Although the language of ‘prevent(ion)’ is repeated, readers will spot that the word ‘all’ was removed from the new defence during parliamentary proceedings.
At first glance this looks as though employers have a far lower threshold to meet in order to establish their defence to a breach of the new duty to prevent sexual harassment. However, the Amendment may add a further layer of precarity to the employer’s position. Let’s have a look at why.
Underestimate, and you might overcompensate
In tribunal proceedings, any breach of the new duty would be considered after a finding of sexual harassment has already been made (since a claim for breach of the new duty cannot be pleaded in isolation). Therefore, employers are already on the backfoot on liability before the tribunal even considers any breach of the new duty. In practice, if the employer has failed the ‘all reasonable steps’ test and is found liable for a sexual harassment claim, it seems more likely that the ‘reasonable steps’ test will fail as well, resulting in the employer also being liable for failing to prevent sexual harassment in the workplace. As the legislation is new, there is no case law to guide employers on how the new test will be applied by tribunal judges and there is no guarantee that the tribunal will interpret new legislation in line with employer hope or expectation.
Additionally, it can be safely predicted that every claimant will plead the twin claim to bolster their case, which will shift the burden of proof anew onto the employer to show that reasonable steps were taken to prevent the harassment. Employers could pay a high price for any such failure – the tribunal will be able to apply an uplift to compensation of up to 25%. The rate of uplift will depend on the extent to which the employer has contravened the new duty.
Whilst the uplift is only activated if there has been sexual harassment, it then applies to all of the compensation awarded for any harassment, not just sexual harassment. If the employee has succeeded in a claim on multiple incidents of different harassment, the uplift triggered by breach of the new duty could get expensive very quickly.
Ultimately, it is possible there will be little practical distinction between the two defences given that they cover the mutual ground of ‘reasonable steps’ taken to prevent sexual harassment in the workplace.
Reasonable steps
On that note, what are ‘reasonable steps’? The definition is not set out in the legislation, so understanding exactly how to meet the statutory expectation to prevent sexual harassment in the workplace is not clearcut. To that end, there will be an updated Code of Practice issued by the EHRC to provide guidance. The existing EHRC guidance on sexual harassment and harassment at work published in January 2020 can still be consulted in the interim.
The EHRC guidance details a seven step plan employers could follow to ensure that they are doing what they can to prevent workplace sexual harassment, which is likely to assist employers in complying with this new duty. By way of broad overview, these measures (along with some suggested examples) include:
1. Developing an effective anti-harassment policy
- Regularly updating and circulating an anti-sexual harassment policy which is targeted at known risks and is tailored to the business
2. Engaging staff
- Setting up signage in the workplace to remind staff that harassment and other forms of offensive behaviour is not tolerated
- Ensuring engagement with anti-harassment policies at a senior level – e.g. regular training
- Intranet blogs and hardy copy communications on the topic
- Reminding the workforce of anti-harassment policies before work functions and social events
- Conducting a staff survey to establish any concerns
3. Accessing and taking steps to reduce risks in the workplace
- Conducting risk assessments to identify risk factors and any action to be taken
- Conducting an audit to establish the current position of the business, including any ongoing complaints or common themes amongst multiple complaints
4. Reporting
- Creating and updating reporting registers for harassment complaints
- Keeping accurate record of measures taken to prevent sexual harassment
5. Training
- Carrying out meaningful situational training targeted at preventing sexual harassment and tailored to individual roles / categories of employees
- Giving witnesses the tools and means to intervene when harassment takes place
- Appointing and training representatives or ambassadors to provide support to harassment victims
6. Making sure staff know what to do when a harassment complaint is made
- Ensuring a clear pathway for reporting complaints, exploiting any new technology to do so
- Ensuring that all complaints are investigated fairly
- Ensuring that staff feel safe making any complaints, with due consideration for anonymity and confidentiality
7. Dealing with third parties
- Setting up signage in areas where staff and third parties meet to establish that harassment of any kind is not tolerated
Bespoke, not blanket
However, employers should be aware that any measures taken need to extend far beyond a tick-box exercise. Training and policies which are not tailored to the respective employee populations and specific roles will not meet the ‘reasonable’ bar. Taking the pulse of the specific organisation to see what the problem actually is (if, indeed, any) and designing measures to address known risk factors will serve far better at tribunal (and, more importantly, keep the workforce safer) than a blanket implementation of new measures which only pay lip-service to the new duty.
This is an opportunity for employers to take ownership of their strategy to actively prevent sexual harassment in a custom-made, effective way. Employers are welcome to get in touch with us to discuss our thoughts on tangible steps they can take to meet their obligations. Our advice is to effect change well in advance of the Amendment coming into force in October, as prevention is better than cure.