New Duty for Employers to Take Reasonable Steps to Prevent Sexual Harassment
On 26 October 2024, new legislation comes into force which means that all employers will have to take reasonable steps to prevent sexual harassment of workers in the course of their employment. This includes events such as external conferences and Christmas parties. This is part of the Worker Protection (Amendment of Equality Act 2010) Act 2023.
A new penalty of up to a 25% uplift on any successful sexual harassment compensation award in the Employment Tribunal has also been introduced. This will be based on how lax the employer has been in complying with these new preventative steps.
The Equality and Human Rights Commission (EHRC) have provided guidance for employers, which includes eight steps that employers should take in order to prove they have complied with this duty, and have taken reasonable steps to prevent sexual harassment at work. These steps can be viewed here.
Existing legislation includes a complete defence to sexual harassment claims if employers can show they have taken ‘all reasonable steps’ to prevent the sexual harassment from happening. However, to date, Employment Tribunals have been reluctant to accept that employers have met the requirements of this defence. Consequently, employers have been found to be vicariously liable for sexual harassment committed by their staff in the course of their employment.
We believe that if an employer takes all eight steps seriously this should provide a complete defence as they will have done all that is reasonably possible to actively prevent sexual harassment taking place.
It will be vital for employers to identify the specific risks that exist in their workplace, including their sector, and to take positive steps to eradicate these. This should be identified in their sexual harassment policy. It is important to remember that while sexual harassment is more likely to be perpetrated by men against women, this is not always the case. We have dealt with cases where men have sexually harassed men and older women have sexually harassed younger men.
We thought it would be interesting to look at two employer case studies on our website that our team have worked on over the past few years, to see what would have happened if this law had been in place at that time.
The first case was where we defended an owner / director against allegations of sexual harassment over a three year period. The firm was a PR company that put on events all over the world and often treated their workers to international holidays as a reward for their hard work.
There was a lot of heavy drinking which resulted in risky behaviour. A risk assessment would have identified this as the main cause of potential sexual harassment complaints.
This case had been brought by a vexatious woman who wanted a large pay out. The Claimant’s solicitor relied on her photos of them partying in a raucous fashion. Certainly had the company stopped holding these events, or had rules about the amount of drinking, these steps would have greatly eradicated the risk. The Judge and two lay judges, after a six day Employment Tribunal, unanimously found that there was no unwanted behaviour and no evidence of any sexual harassment.
Another case involved a young woman referring to an older woman in an extremely unpleasant derogatory and sexual manner to a male work colleague in a Skype message, which the older woman then found.
A small injury to feeling award was offered by the company to her as a gesture of good will, as the male colleague had not challenged this comment, and this woman had since left the firm.
Given the nature of the new preventative steps, the company policy and training would have been made clear to everyone that they had a duty to report such a comment. This should have resulted in this young woman being faced with disciplinary action. As she had already left the company it was made clear that no reference would ever be provided now that this information had come to light.
If the young woman’s actions had been reported and she had been disciplined, the company would have had a strong defence, assuming all other preventative measures had been complied with, including training.
We believe that the most important aspect of these new preventative steps is that it is aiming towards a work culture where all staff feel comfortable and supported enough to call out anything they believe to be sexual harassment. This is whether this involves them personally or is directed at a colleague and includes third party harassment from a contractor, customer or client.
It will be interesting to see how workplaces adapt in the next year and whether this will result in fewer or more cases in the Employment Tribunal. Only time will tell. But what is important is that if these preventive steps are taken, workplaces will become safer and much more egalitarian.
We hope that if the majority of employers send out a clear signal that sexual harassment will not be tolerated in their workplace, we will see a positive change.
Laura Donnelly is running bespoke training sessions for organisations on Sexual Harassment in the Workplace – Prevention, Conducting Investigations & More – for more information call 01273 609911, or email laura@ms-solicitors.co.uk.
