From 26 October 2024, UK employers will be subject to a new positive duty to prevent sexual harassment of workers in the course of their employment. The new preventative duty is set out in the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act).
In anticipation of the new law coming into force, the UK Equality and Human Rights Commission has recently published updated Technical Guidance on “Sexual harassment and harassment at work” intended to help employers understand their new obligations. The guidance has also been supplemented by an “Employer 8-step guide”. Whilst the technical guidance and step plan is not legally binding in and of itself, it is likely that employment tribunals will have regard to these in practice when assessing whether or not an employer has met the new legal duty.
The preventative duty cannot be enforced by workers directly on a standalone basis. In the event of a successful harassment claim involving some form of sexual harassment, however, an employer who is found to have breached the preventative duty could be liable to an uplift of up to an additional 25% of the compensation award. It remains the case the potential amount of compensation awardable in a successful harassment claim is not subject to any cap. The EHRC also has the power to conduct investigations and take enforcement against employers, irrespective of whether any complaint has been brought.
IN DEPTH
What is Changing?
Under existing UK anti-discrimination and harassment laws, a UK employer will be held vicariously liable for acts of discrimination, victimisation or harassment committed by workers in the course of employment unless they can show that they took “all reasonable steps” to prevent those acts. Those longstanding existing laws will continue to apply.
The Act introduces a new positive legal duty on employers to take reasonable steps to prevent sexual harassment of their workers. It has been designed to improve workplace cultures by requiring employers to anticipate how sexual harassment might happen in their workplace and take proactive reasonable steps to prevent it happening, rather than focussing on harassment in a more reactive way. Notably, the preventative duty applies not just to worker-on-worker sexual harassment, but also sexual harassment by third parties such as customers, clients or patients.
What Forms of Harassment Does the New Duty Apply To?
The new preventative duty applies only to sexual harassment.
Under the UK Equality Act 2010, sexual harassment is defined as “unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”.
It does not, therefore, cover harassment related to a protected characteristic (including sex), nor does it apply to less favourable treatment for rejecting or submitting to unwanted conduct. However, those types of harassment nevertheless remain unlawful and it is expected that employers should continue to take steps to prevent all types of harassment at work or else risk being found vicariously liable for any unlawful acts.
What Steps Should UK Employers be Taking?
The Act does not specify what constitutes “reasonable steps”.
The EHRC’s Technical Guidance, whilst describing a wide range of measures that employers could potentially take to prevent sexual harassment, also makes clear that what is reasonable will ultimately vary from employer to employer, including depending on the size and nature of the employer, the resources available to it and the risks factors which need to be addressed within a particular employer or sector.
To assist employers’ in their compliance efforts, however, the EHRC has also recently published an ‘Employer 8-step guide’, which recommends that UK employers take the following (non-exhaustive) steps:
- Develop an effective anti-harassment policy that deals with sexual harassment (whether as a standalone policy or together with other forms of harassment).
- Engage with staff. This includes conducting regular one to ones, running staff surveys, conducting exit interviews and having open door policies.
- Carry out risk assessments and taking steps to reduce workplace risks identified. This will include considering factors that might increase the likelihood of sexual harassment and the steps that can be taken to minimise them. For instance, identifying power imbalances, instances of lone working, external events, conferences or training, general workforce culture, staff socialising and the prevalence of customers or staff drinking alcohol.
- Implementing a reporting system (such as an online or independent telephone-based service) that allows workers to raise an issue either anonymously or in name. Keeping centralised, confidential records of all concerns raised, formal and informal, that enables trends to be identified.
- Training. All staff should be trained on sexual harassment in the workplace, including what it looks like, what to do if they experience or witness it and how to handle any complaints of harassment. In industries where third-party harassment from customers is more likely, workers should also be trained on how to address these issues.
- Act immediately to resolve complaints and protect the complainant from ongoing harassment or being victimised during an investigation or complaint. Employers should, of course, also respect the confidentiality of all parties.
- Address harassment by third parties, such as customers, clients, patients or suppliers just as seriously as that by a colleague and consider what steps can be taken to prevent this type of harssment.
- Continue to monitor and evaluate the effectiveness of steps put in place to prevent sexual harassment. This final point underscores the fact that compliance with the new preventative duty requires ongoing consideration, including on account of changes in the workforce and feedback from workers or their representatives.
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