Current law is being added to rather than being replaced. Under new legislation, employers will be required to take ’reasonable steps’ to prevent sexual harassment.
The new law creates a positive legal obligation for employers to try to stop sexual harassment from happening in the first place by taking reasonable steps to prevent it.
Looking forward, there are likely to be further changes.
The government has highlighted its intention to expand the new duty to require employers to take ‘all reasonable steps’ to prevent harassment occurring (not just ‘reasonable’ ones).
It also intends to make employers liable for harassment by customers and other third parties, and give whistleblowing protection to those who report sexual harassment.
Proactive duty
The EHRC published updated guidance on sexual harassment at work on 26 September to reflect the new obligation. If employers fail to comply with the new duty they face both financial and reputational risks.
For example, there is no additional standalone claim under the new legislation. However, employers that neglect to prepare for this new duty could face an increase in harassment claims. In addition, the claims could be more costly.
If an employee succeeds with an employment tribunal claim for sexual harassment and the employer is found to have breached its duty to take reasonable steps to prevent sexual harassment, the employment tribunal can increase compensation for a successful claim of sexual harassment by up to 25%. As there is no cap to the compensation which can be awarded for discriminatory harassment, this uplift could be significant.
The EHRC can also investigate employers and take enforcement action. Action can be taken based on a suspicion of non-compliance; there does not need to be an incident of sexual harassment before the EHRC will consider exercising its enforcement powers.
The EHRC guidance states that the new duty will require employers to take reasonable steps to prevent sexual harassment by both their own workers and third parties.
The new legislation originally sought to reintroduce liability for third party harassment, such as harassment of employees by clients and customers, service users and members of the public, but this was removed during the parliamentary process.
A failure to comply with the duty in relation to third parties is unlikely to lead to an uplift to compensation, because this only applies where the employer is legally liable for the sexual harassment.
However, it is likely the EHRC’s powers of enforcement will apply in this scenario and the EHRC expects employers to treat sexual harassment by third parties equally as seriously as harassment within the workplace.
Preparing for the new duty
What constitutes ‘reasonable steps’ will depend on the specific circumstances of the employer, including its size and sector. Employers should consider the steps to take, in light of the new legislation and the revised guidance from the EHRC.
Regulated employers should also consider separately any specific guidance set out by their regulator.
Examples of measures that could be taken by employers include:
- Conducting risk assessments to identify situations in which employees may be subject to sexual harassment (this has been emphasised in the revised EHRC guidance).
- Reviewing and updating an anti-harassment policy, ensuring that it is communicated to and easily accessible for all workers. It may be appropriate, depending on the organisation, to introduce a separate sexual harassment policy, alongside the more general policy.
- Implementing or refreshing reporting procedures so employees feel comfortable ‘speaking up’.
- Effectively dealing with complaints and taking the appropriate disciplinary action against harassers.
- Putting in place anti-harassment training for all staff which is regularly updated and delivered. Additional training should also be provided for managers on how to handle a complaint relating to other employees.
- Not ignoring complaints made by employees which concerns third parties.
The current law
Sexual harassment is defined as unwanted conduct that is sexual in nature, where the purpose or effect of the conduct is to violate a person’s dignity or create an intimidating, hostile, degrading or offensive environment.
'Unwanted conduct' could be any of the following (although this is not an exhaustive list):
- Sexual comments or 'jokes'
- Sexual noises, for example, catcalling or wolf-whistling
- Displaying sexually graphic photos, or making sexual gestures
- Unwanted sexual advances or flirting
- Asking intrusive questions about a person's private or sex life
- Someone discussing their own sex life.
The Equality Act 2010 prohibits sexual harassment and employers are liable for harassment committed by their workers in the course of employment. However, employers will have a defence against claims if the employer can show they took ‘all reasonable steps’ to prevent the harassment.
