Sexual Harassment in the Workplace

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The new duty to prevent sexual harassment contained in the Worker’s Protection Act 2023 (Amendment of Equality Act 2010) has placed the UK on a firm path towards fostering a culture of proactive prevention, rather than one of reaction and redress. So, what are the “reasonable steps” an employer should take?

How is Sexual Harassment defined by law?

Section 26 of the Equality Act 2010 defines sexual harassment as “unwanted conduct of a sexual nature that has the purpose or effect of violating a person’s dignity or creating for that person an intimidating, hostile, degrading, humiliating or offensive environment.” Examples of such behaviour can include sexual comments or jokes, suggestive looks, staring or leering, propositioning or sexual advances, or unwanted contact or hugging.

The Act already only prohibits employers from harassing their employees or job applicants, it also states that employers can be liable for acts of sexual harassment carried out by its staff in the course of their employment. An employer does not need to have approved of or be aware of its employee’s action to be liable for sexual harassment. However, an employer may have a defence if they can show that they took all reasonable steps to prevent the harassing employee from acting unlawfully.

The new legislation due to come into force in October 2024 amends the Equality Act 2010 in two respects. It will:

1. introduce a new duty on employers to take reasonable steps to prevent sexual harassment of their employees. This marks a key change in focus in the legislation from redress to prevention, imposing a new obligation on employers to be proactive in tackling sexual harassment; and
2. give employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached this new duty – this uplift could be significant, especially as compensation awarded in the most serious cases of sexual harassment can exceed £50,000.

It is important to note that this new duty does not give rise to a freestanding claim and must be attached to a claim for sexual harassment.   If an employee makes a successful claim and the employer is found to have breached the new duty, the 2023 Act gives employment tribunals the power to increase any compensation up to 25%.

The duty can also be enforced by the Equality and Human Rights Commission (EHRC), using its existing powers of enforcement, including investigations.

The amendment due in October 2024 is not intended to affect the existing statutory defence to a claim of sexual harassment, where employers have taken ‘all reasonable steps’ to prevent it. This is a high hurdle for employers to surmount, as it is relatively easy for a claimant to suggest other steps that an employer could have taken, thereby demonstrating that they did not take ‘all’ reasonable steps.

The amendment will create a separate ‘reasonable steps’ test for the new duty on employers to prevent sexual harassment. This is a lesser test, which should be easier for employers to satisfy, although it remains to be seen how this new duty will be approached by tribunals, particularly given that they will already have made a finding or findings of sexual harassment before considering this duty.

Proactive Prevention in Practice

Employers should consider the following practical steps:

• Create a clear anti-harassment policy and reporting procedure which is available to workers, effectively applied, monitored and with regular reviews. Ensure that policies contain a clear definition of sexual harassment and state that such behaviour is unacceptable.
• Implementing regular, periodic training for managers and staff, including those training sessions to refresh on policies and procedures. Make staff aware of what workplace harassment looks like and what they can do if they experience it either directly or as a bystander. Highlight how complaints should be handled.
• Hang visible signs in work areas clearly indicating that threats, violence and harassment will not be tolerated.
• Make sure that there is a clear reporting path for any complaints and that all employees know how to access this framework. Consider an effective online reporting tool to promote the reporting of sexual harassment.
• Conduct a thorough investigation of complaints raised by workers and taking immediate action where necessary. Deal with all complaints in a sensitive manner.
• Create a risk management framework for sexual harassment. Assess and conduct targeted risk assessments to ascertain risk factors and determine what actions can be taken to minimise risk.

Our Employer Protection Scheme gives you direct access to expert advice from our experienced employment solicitors, providing employers with guaranteed peace of mind that your organisation is fully compliant with all current legislation. To find out more contact Tim Wolley or Clare Thomas by calling 01782 200000 or email ct@bowcockpursaill.co.uk or tw@bowcockpursaill.co.uk.