Employment Law Digest August – New duty to prevent sexual harassment

This introduces a new duty on employers to take reasonable steps to prevent their employees from being sexually harassed by other employees and third parties (the 'duty of prevention'). If an employee successfully brings a claim for sexual harassment and their duty has not been fulfilled, the employee's compensation for non-compliance may be increased by up to 25%.

The prevention duty and its application to third parties represent significant changes that mean that all employers must take steps to minimise the risk of sexual harassment.

What is the current legal situation?

Section 26 of the Equality Act 2010 defines harassment as unwelcome conduct that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for an individual. The Act prohibits three types of harassment:

1. Harassment based on a protected characteristic, including gender;
2. Unwanted conduct of a sexual nature that has the purpose or effect of harassment (sexual harassment); And
3. Less favorable treatment that occurs because the person has refused or submitted to the undesirable behavior.

Sexual harassment can include sexual jokes, unwanted hugs, advances, and intrusive questions about a person's sex life. A person can be sexually harassed by someone of the same or opposite sex.

Under current law, employers can be held vicariously liable for the acts of their employees or agents (but not third parties) that occur in the course of employment. However, they can defend against such claims if they have taken reasonable steps to deter the harassing employee from engaging in unlawful conduct.

Why is the law changing?

In March 2018, the Equality and Human Rights Commission (EHRC) reviewed current legislation and concluded that current protections are insufficient to protect workers from sexual harassment. It made recommendations, including a mandatory obligation for employers to take reasonable steps to prevent sexual harassment. In July 2018, the Women and Equalities Select Committee also submitted a report and agreed to recommend including a mandatory obligation. In May 2023, the Trades Union Congress reported that 39% of cases of sexual harassment in the workplace were perpetrated by third parties.

What is changing?

The obligation to prevent sexual harassment only applies. It does not extend to harassment related to a protected characteristic (including gender) or to less favourable treatment due to the rejection or tolerance of undesirable behaviour.

The obligation requires that employers anticipate Scenarios in which their employees may be exposed to sexual harassment in the course of employment and take action to impede such harassment occurs. If sexual harassment has already occurred, an employer must take all reasonable steps to ensure that it does not happen again. Crucially, the new duty extends to preventing harassment Third.

Employees cannot file a lawsuit simply because an employer has breached its duty to prevent harassment. However, if a claim for sexual harassment is successful, an employment tribunal can must checks whether a breach of duty has occurred and, if so, can increase the compensation by up to 25%.

The legislation confirms that the EHRC has enforcement powers in relation to the positive duty. In addition to producing statutory guidance, the EHRC also has the power to:

• Investigate an employer
• Issuing a Notice of Unlawful Action if the employer is or has been the subject of an investigation that confirms that an employer has violated the law and requires the employer to develop an action plan outlining how it will correct any continuing violation of the law and prevent future violations.
• Enter into a formal, legally binding agreement with your employer to prevent future violations.
• Apply to the court for an injunction to prevent an employer from committing an unlawful act

The EHRC cannot enforce the duty to prevent only when an incident of sexual harassment has actually occurred.

What are “reasonable steps” to prevent sexual harassment?

What is considered appropriate depends on the size and resources of the employer, the industry in which it operates, and whether employees work with third parties such as customers, suppliers, patients, families, friends, conference attendees, etc. The following steps may be appropriate, but the exact steps must be considered on a case-by-case basis:

• Implementation of a Risk assessment understand the risk of employees being exposed to sexual harassment and take steps to reduce those risks
• Review of previous complaints of sexual harassment and considering what steps can be taken to prevent a recurrence
• update Policies and procedures Clarification of the legal situation, expectations of staff and options for making complaints
• Training Employees, including managers, should raise awareness
• Specific Training for managers so that they understand how they can support employees who complain about sexual harassment
• Introduction of procedures to ensure that The training courses are regularly updated and refreshed
• Third party information the guidelines and behavioral expectations

The ECtHR has prepared draft technical guidelines on which consultations are currently taking place. It is therefore possible that further guidelines will be issued following the conclusion of the consultations.

The prevention duty and its application to third parties represent significant changes that mean that all employers must take steps to minimise the risk of sexual harassment.

We will be running a webinar on this topic shortly. If you need support in complying with the new duty, please contact Rachel Blythe.

Please note that this information is for informational purposes only and not for advice, and reflects our current knowledge of English law and practice at the date stated. We always recommend that you seek specific advice on any particular legal matter.

This site may contain links that direct you to third party websites. We have no control over, and assume no responsibility for, the content, use or availability of these third party websites, any products or services you purchase through them, or the treatment of any personal information you provide to third parties.