Sexual Harassment At Work – An Update For Employers

Sexual Harassment At Work - An Update For Employers

Author: Sam Evans

Key Contact: Chris Aldridge

What are the latest changes in this area?

The Worker Protection (Amendment of Equality Act 2010) Act 2023 (“Worker Protection Act”) will come into effect on 26 October 2024. This was passed by the previous government and requires employers to take proactive “reasonable steps” to ensure that employees are not subjected to sexual harassment during the course of their employment. Previously, employers would be liable for any harassment committed by their workers in the course of employment but could rely on a defence that they took “all reasonable steps” to prevent it. The new duty will complement the existing “all reasonable steps” defence but will go further in terms of third-party liability (discussed below).

 For more information about the Worker Protection Act and the notion of “all reasonable steps”, click here to view an earlier article by Acuity Law.

Since our last article on this subject, on 9 July 2024, the Equalities and Human Right commission (“EHRC”) launched a consultation on proposed amendments to its guidance on sexual harassment and harassment at work following the passage of the Worker Protection Act. This consultation will cover specifically what the EHRC terms the “preventative duty” to take “reasonable steps” under the Worker Protection Act. The consultation will close on 6 August and following this the EHRC will publish updated technical guidance with a new guidance section in September.

On its website, the EHRC has included a draft of its new guidance section concerning the preventative duty. This can be accessed here. There are some useful takeaways for employers including:

• The duty is an anticipatory one. Employers should not merely wait until an incident of sexual harassment has taken place before they take action. In other words, they should take action to stop harassment happening AND, if harassment has already taken place, continue taking proactive steps to stop it happening again.
• The preventative duty will also cover prevention of sexual harassment by third parties. This will mean that if an employer does not take reasonable steps to prevent sexual harassment of their workers by third parties (including customers, suppliers, clients, service users, patients, friends and family of colleagues and members of the public), they will breach the preventative duty. This is an interesting conclusion as the government had previously explored introducing employer liability for third party sexual harassment during an earlier consultation, but it had been rejected on free speech grounds. The EHRC’s logic would appear to be because the Worker Protection Act states that employers are responsible for preventing sexual harassment regardless of its origin.
• What is reasonable will vary from employer to employer and will depend on numerous factors including the employer’s size, the sector it operates in, the risks present in the workplace and the types of third parties workers may have dealt with and the risk they may come into contact with third parties.
• The EHRC will be a proactive enforcer and will not hesitate to take action using its powers under the Equality Act 2006 if they suspect that an employer has not complied with the preventative duty. Enforcement will not require an incident of sexual harassment to have taken place.

Therefore, we would recommend that employers prioritise the new duty and ensure they are able to comply well in advance of the October deadline to avoid any tribunal claims or adverse enforcement action by the EHRC. This will require, at the minimum, for employers to consider existing policies, training requirements as well as monitoring the extent of sexual harassment within the organisation by monitoring complaints and undertaking risk assessments. It may also be prudent to consider annualised training relating to sexual harassment, both for managers and those who do not have management responsibilities. Any policies should also be easily accessible for all workers.

For more advice on compliance with the duty, please feel free to reach out to the Employment team at Acuity Law.

How will the new government treat this subject?

The Labour Party has promised to strengthen the compulsory duty set out in the Worker Protection Act and require employers to take “all reasonable steps”. Generally, the question of what “all reasonable steps” means is an extremely fact sensitive question and will likely align with the existing “all reasonable steps” defence available to employers under section 109 of the Equality Act 2010. This would set a high standard for employers to reach and would go beyond merely providing anti discrimination training to staff or having an equal opportunities or harassment policy. We would recommend that any employers regularly review their policies and culture whilst taking proactive steps to implement any changes.

In addition, the new government has also pledged to extend whistleblower protection to those who report sexual harassment. This would mean that workers could not be dismissed or subjected to a disciplinary process for reporting such acts.

On a related note, the new government has also pledged to combat third party sexual harassment. Given the language in the Worker Protection Act and the EHRC technical guidance, it is likely that the government will not need to make further legislative changes to implement this promise. However, Angela Rayner, Deputy Prime Minister, has previously committed to grant further protections to interns and volunteers who are harassed by workers.

However, following the King’s Speech on 17 July 2024, it is unlikely that any of these proposed changes will come into force prior to 2025 as these measures have not appeared in Labour’s new Employment Rights Bill or its draft Equality (Race and Disability) Bill.

If you need guidance on your approach to complying with this new duty and nurturing a safer working environment, please contact the Employment team at Acuity Law. The team can provide tailored training and advice on best practices in the workplace, as well as drafting bespoke sexual harassment policies.