Preventing sexual harassment of employees – the “New Duty”

We wrote last November about the Worker Protection (Amendment of Equality Act 2010) Act 2023 which at that time had just received Royal Assent and which introduced a new duty to prevent sexual harassment. The Act comes into force in a little over a month from now so we take the opportunity to set out its effects and implications for employers and employees in more detail.

This article will cover both the new statutory wording and the Equality and Human Rights Commission (“EHRC”) guidance, which can be found here.

What is changing?

From 26 October 2024, employers will be subject to a new proactive duty to take “reasonable steps” to prevent sexual harassment of all their employees in the course of their employment (the “New Duty”).

Breach of the new duty to prevent sexual harassment does not give employees a standalone claim against their employer, but if they bring another successful claim under the Equality Act 2010, the Tribunal is obliged to uplift any compensation awarded by up to 25% if the respondent employer has breached the New Duty. The Tribunal must award the uplift if the New Duty is breached and the uplift must reflect the extent of the breach of the duty.

The EHRC has the power to enforce the New Duty, including:

• Investigating employers.
• Issuing an unlawful act notice.
• Entering into a binding agreement with the employer to prevent future acts.
• Asking a Court for an injunction to restrain future unlawful acts.

It is fair to say that the EHRC has historically not exercised its enforcement powers widely or particularly proactively and this might also prove to be the case in relation to the New Duty. However, the Government has also announced that it intends to introduce a new enforcement body for employment rights, and if this is well-funded and tasked with enforcing the new duty, the risk of enforcement action might be higher.

What does the New Duty cover?

Employers will be obliged to take reasonable steps to prevent sexual harassment of employees in the course of their employment by:

• Other employees.
• Agents of the employer.
• Third parties such as customers, suppliers, contractors, friends and families of colleagues and members of the public. In other words, anyone who is not an employee.

Employees cannot bring claims against their employer because of harassment (sexual or otherwise) by third parties. This is not changing under the new law, but employers will have a duty to take reasonable steps to prevent sexual harassment by third parties (as well as the other categories listed above).

Sexual harassment of an employee does not have to be the harassment which a claimant relies upon in bringing a claim for them to argue that the New Duty has been breached, nor does it even have to be harassment which the claimant experienced. The New Duty can also be breached even if sexual harassment has not in fact taken place; the employer simply must have failed to take reasonable steps to prevent such harassment.

As is the case with discrimination claims generally, “in the course of their employment” not only means when employees are at work, but e.g., sexual harassment in work WhatsApp groups, at Christmas parties, at other work-based social events, or which takes place offsite at third party training venues.

What types of compensation can the uplift be applied to?

If the New Duty is breached, the uplift is not only applicable to compensation under successful claims of sexual harassment, but can be applied to any successful Equality Act claim which “involves” sexual harassment “to any extent”, and which results in compensation being awarded.

To use a practical example:

• A young employee is sexually harassed by a customer (which would not give them a claim), or by a colleague (but that claim is out of time) and raises a grievance.
• In the grievance meeting, the employee’s manager (non-sexually) harasses the employee; for example, by saying that “people like you in Gen Z are always complaining instead of working”.
• The employee would have a claim for age (but not sexual) harassment and for victimisation.
• If the employee’s claims succeeded, they could say that the employer breached the New Duty in respect of the sexual harassment they experienced, even though they did not (or could not) bring a claim in relation to that sexual harassment.
• If the Tribunal found that the New Duty had been breached, it could uplift the employee’s age harassment/victimisation compensation by up to 25%.

We think that claimants with the benefit of legal advice, or who are savvy enough to appreciate the option to ask for an uplift, are likely to seek to apply it widely and try to link their claims to an earlier failure by the employer to prevent sexual harassment.

It’s possible that a claimant could rely on a failure by their employer to prevent sexual harassment at a different place of work (e.g., another office or venue where the employer does business). A claimant could also seek to rely on a failure to prevent sexual harassment of another colleague, or sexual harassment of the claimant that took place long ago or even in a different role.

How far tribunals will be prepared to find that these things were “involved” in an employee’s claim will depend on the facts, but at face value, the words “to any extent” are broad. We can foresee a claimant arguing, for example, that they were sexually harassed by a colleague years ago and chose not to complain or bring claims, but a newer act of discrimination has brought back that past trauma and the sexual harassment they experienced is therefore involved in the new unlawful acts to an extent (because it increased the injury to their feelings), thereby allowing them to ask the Tribunal to make the uplift.

Breach of the new duty does not have to be pleaded in the claim which the employee brings, but can simply be raised at the remedy stage if the claim is successful. However, we may see enterprising claimants or their lawyers seek to use the New Duty as a basis to demand early disclosure of documentation relevant to the respondent employer’s compliance with the New Duty.

Given that many claims settle before proceeding to a final hearing, these arguments and tactics might begin to feature in settlement demands made by employees/ex-employees.

What does “reasonable steps” mean in practice?

The New Duty bears some similarities to the existing statutory defence available to employers defending harassment claims; namely that the employer took “all reasonable steps” to prevent harassment from taking place. The New Duty however does not require employers to take “all reasonable steps”, only “reasonable steps”. This would appear to be a lower threshold and the EHRC Guidance states that the New Duty is a “separate positive legal duty”.

In practice, however, we don’t currently see that the distinction is necessarily meaningful. If a step is reasonable, the employer is obliged to have taken it, so this in our view necessarily includes all steps which are reasonable.

According to the EHRC guidance:

• What steps are deemed to be reasonable will vary from employer to employer.
• The test of whether reasonable steps were taken is an objective one.
• Relevant factors for the employer to consider will include:
  • The size of the employer.
  • The nature of the workplace.
  • The risks of sexual harassment present in the workplace.
  • The types of third parties that employees may have contact with.
  • The likelihood of employees actually having contact with those third parties.

Larger employers or those with deeper pockets are likely to be held to a higher standard than smaller or less well-funded businesses and the list of steps those employers can take which are reasonable is likely to be longer than for other companies. Similarly, the threshold for compliance with the New Duty is likely to be higher for employers whose employees have (or are likely to have) a higher level of interaction with colleagues and third parties. An employee working in a large call centre or at a hospitality or retail venue will be at greater risk of sexual harassment than an employee working in, say, a small start-up company where staff all work remotely and most do not interact with clients. Employees working in licensed venues where customers may be drunk or under the influence of other substances are likely to be at particular risk.

The EHRC guidance makes it clear that employers are expected to be proactive and take preventative and anticipatory steps, i.e.:

• They must anticipate scenarios where employees might/could be subjected to sexual harassment in the course of their employment.
• They must act to prevent such harassment.
• If sexual harassment does take place, they must take further steps to stop this happening again (either with the employee(s) involved, or any other employees).

A non-exhaustive list of steps employers can consider taking includes:

• Educating staff as to what sexual harassment is, and how it can be avoided.
• Considering whether cultural change is required to foster an inclusive culture where employees feel free to raise concerns about sexual harassment or speak out when it takes place.
• Ensuring that a clear policy is in place dealing with sexual harassment. This does not need to be a standalone sexual harassment policy but having one could be compelling evidence to a Tribunal that the employer has taken the New Duty seriously.
• Consistent application of the policy, backed up by contemporaneous documentary records.
• Targeted risk assessments as to likely sexual harassment risks. The EHRC guidance states that an employer is unlikely to be able to comply with the New Duty unless a risk assessment (or risk assessments) is conducted
• Clear reporting channels and enforcement response.
• Training (ideally interactive and not merely a tick-box exercise) in relation to sexual harassment and periodic refreshers of such training.
• Training, periodically renewed, for those who manage and address sexual harassment allegations, such as managers or HR professionals.
• Appointment of a senior manager or HR professional (not necessarily a new hire) responsible for monitoring compliance with the duty throughout the business.
• Warnings to third parties that sexual harassment of staff is not tolerated. This could include signs within stores, or automated telephone messages to incoming callers.
• Support (internal or external) for complainants.
• Involving stakeholders (e.g., unions, worker’s councils, employee representatives) in determining what other steps might be reasonable.

The EHRC guidance contains an 8-step guide for employers on complying with the new duty to prevent sexual harassment.

Much of the interpretation of the New Duty will fall to the Tribunals, and employment specialists will be watching the Employment Appeal Tribunal in particular with interest in the coming years for judicial guidance on how the New Duty will be applied.

That said, employers who wish to ensure that they are compliant so as to protect their workforce from sexual harassment (and to protect themselves from the reputational and financial consequences which would arise from a breach of the New Duty) will be well-advised to seek legal advice early on their obligations and the options available to them.

*UPDATE (30.09.2024) The EHRC Guidance has now been published and this article has been updated to reflects its contents. The previous version of this article referred to the draft Guidance, which at that time was under consultation, and some amendments were made to it following that consultation.*