New duty to prevent sexual harassment

The Worker Protection (Amendment of Equality Act 2010) Act (the Act) received Royal Assent on 26 October and will come into force one year from this date. The Act will introduce a new legal duty on  employers to take steps to prevent sexual harassment in the course of employment.

Once in force, employers will need to change their approach to workplace sexual harassment with the emphasis on prevention, rather than responding to complaints. As the government acknowledged in their 2021 consultation response “there is still a real, worrying problem with sexual harassment at work” and the Act is designed to address this. Whether the Act will do this, when the protections were reduced from those originally proposed, will largely depend on how employers respond to the changes, the detail in the updated Technical Guidance, and the resources available to the Equality and Human Rights Commission to investigate breaches of the duty.

What will the duty to take reasonable steps to prevent harassment entail?

The Act does not explain what reasonable steps will involve, other than explain that this must be in the course of employment. The Equality and Human Rights Commission (EHRC), has said they will update the Technical Guidance, Sexual harassment and harassment at work published in January 2020, to reflect the new duty. Previously the government had said the duty would be supported by a new code of practice, however there was no mention of this by the EHRC in the press release published after the Act gained Royal Assent. The same press release explains that a consultation will take place on the content of the updated Technical Guidance.

The new duty applies to sexual harassment and does not apply to harassment based on the other protected characteristics such as disability or race. However, we recommend that any additional measures to prevent harassment cover all the protected characteristics. 

How does the new duty interact with the reasonable steps defence?

The idea behind the duty was to shift the point of legal liability from after the act of harassment which is the current position in the Equality Act 2010. Employers have a defence to a claim for sexual harassment in s.109 of the Equality Act 2010 if they have taken all reasonable steps to prevent harassment. Commonly referred to as the reasonable steps defence, this provision enables employers to avoid liability for an act of harassment which happened despite their best efforts. The original idea was that the new duty would mirror s.109 and the wording would be the same; that employers should take “all reasonable steps” to prevent harassment, but the word “all” was removed during the parliamentary debates. It remains to be seen what difference it will make to the duty by removing the word “all” from the legal test.

What else has been removed from the final Act?

Originally the Act contained a provision re-introducing employer liability for the actions of third parties (such as clients, contractors or customers). However, this provision was removed and significantly reduces the protection in the Act. It had been a central part of the original plans that the Act would re-introduce liability for third party harassment which was repealed in 2013.

Enforcement

There is no individual right of action if an employee believes their employer is in breach of the duty. However, the EHRC will have power to take action if there has been a breach of the duty.

If a worker is successful in a claim for sexual harassment and the employer has been in breach of the duty, then a tribunal may increase compensation by up to 25%.

Impact on employers

The aim is for employers to focus on prevention and to shift the responsibility for tackling harassment away from individuals to the employer.  Once in force the EHRC will have the ability to investigate an employer because their harassment processes are not meeting their requirements.

It will be the first time that private sector employers in the UK are required to take positive steps to prevent harassment. Employers who do the minimum by having a policy in place and have so far avoided a claim will need to do more and should be budgeting now for resources to increase the steps they put in place to prevent sexual harassment.

The steps that are put in place to tackle harassment will also need to be visible. This is likely to involve reviewing the relevant policies, communicating the changes, carrying out training on what behaviour is not appropriate, ensuring that people feel safe to raise complaints and know that if they raise them, they will be taken seriously and investigated appropriately. Guidelines around social events and the consumption of alcohol is another aspect, since many incidents are connected with out of hours behaviour. Codes of conduct and relationships at work policies may also be part of the solution, as will making it clear that where people are found guilty of harassment they will be  disciplined or dismissed. Larger employers may also conduct surveys, offer anonymous reporting lines and monitor the level of complaints. The updated Technical Guidance is likely to provide more detail on these steps and additional measures.

We do not know whether the EHRC will be given additional resources to enforce the duty. In the last year we have seen an increase in the EHRC holding employers to account where processes for dealing with harassment needed improvement. Section 23 agreements were entered into by the EHRC with two large employers to improve their processes in dealing with harassment. In both cases, these legally binding agreements were widely reported.

The reality, as recent sexual misconduct scandals have demonstrated, is that the law is only part of the solution. A major issue is the lack of reporting and the dynamics of power in a workplace. Complainants and their colleagues should feel safe to speak up, and everyone needs to understand that there are boundaries around how they behave at work, regardless of power or status. Getting all of these parts right is about creating an inclusive workplace culture, which is easy to say but is much harder to do.

Aleksander Ciesla assisted in the preparation of this Law-Now.