For those not familiar with the definition of sexual harassment, this arises where a worker is subjected to unwanted conduct related to sex that has the purpose or effect of violating the worker’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This means that sexual harassment may be intentional, but it can also arise in circumstances where the effect of somebody’s conduct meets the definition even where there was no intention to harass.
The definition of sexual harassment has not changed and employers have always had liability for acts of sexual harassment associated with the workplace. However, what has changed, is that from 26 October 2024, employers have been under a positive legal duty to take reasonable steps to prevent sexual harassment occurring.
This means that employers need to be pro-active in identifying and taking reasonable steps to anticipate and stop harassment from occurring in the first place. To meet this duty, a risk assessment is usually necessary so that employers can identify where risks exist and to help with identifying and adopting appropriate control measures. Other steps that employers are expected to take include having an appropriate sexual harassment policy; operating effective mechanisms to address complaints and tackle problems identified; conducting appropriate training; implementing adequate monitoring; arranging appropriate staff engagement; and looking to prevent third-party sexual harassment.
Where an Employment Tribunal finds that an employer has failed to meet this new duty to take reasonable steps to prevent sexual harassment, it can increase its award by up to 25%. It is important to remember that substantial awards can be made where sexual harassment is found to have occurred (there is technically no upper limit) and so the value of this uplift can be similarly substantial.
We know that the government intends changing the extent of this new duty. The Employment Rights Bill proposes that employers should be required to take “all” reasonable steps to prevent sexual harassment, raising the bar further.
This new duty to prevent sexual harassment has been accompanied by updated guidance from the Equality and Human Rights Commission (“EHRC”). The guidance sets out more detail of the steps employers should be taking to comply with their new obligation, along with a range of helpful examples. The guidance also reminds readers that the EHRC has enforcement powers enabling it to tackle employers who breach their preventative duty.
The EHRC guidance contains a section addressing the need to prevent harassment by third parties. Again, the new government intends further enhancing this with the Employment Rights Bill, including additional measures that will place liability on employers for acts of third-party harassment – in fact, this is the return of a concept previously introduced in the Equality Act 2010 but abolished after a few years.
It is important that all employers take steps to meet the new positive duty to prevent sexual harassment. More developments may be in the pipeline, but those are some way off and, regardless, the new preventative duty applies today.
Discrimination and harassment features as one of several subjects featuring in our employment law training – more information can be found here – https://twmsolicitors.com/our-services/employment-law-and-hr-advice/workshops/. Please contact Anthony Wilcox for more information about our training services.
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