Sexual harassment laws are changing: How Boyes Turner can help get your business ready

From 26 October 2024 the new Worker Protection (Amendment of Equality Act 2010) Act 2023 (the “Act”) comes into force, bringing with it a new positive legal obligation on employers to take “reasonable steps” to protect their workers from sexual harassment “in the course of employment”. Together with this new positive and preventative duty, is a power for employment tribunals to increase compensation by up to 25% and new investigatory and enforcement powers for the Equality and Human Rights Commission (ECHR).  A new draft ECHR Code of Practice is also out for consultation.

There is much for employers and HR teams to do before 26 October – Emma O’Connor, Director, and Head of Client Training, explains what is changing, the implications for employers and how Boyes Turner can help your business prepare.

What type of harassment is affected by the new law?

The new Act affects claims for sexual harassment where there is unwanted conduct of a sexual nature – “unwanted conduct of a sexual nature that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.” Sexual harassment is a separate claim to harassment under the Equality Act 2010.  Under the EHRC (Equality and Human Rights Commission) Code of Practice unwanted conduct can include spoken or written words or abuse, imagery, physical gestures, facial expressions, jokes, gossip, discussing one’s sex life or asking others about there’s. Sexual harassment can be a one-off event or be many. 

Importantly, the new duty does not extend to (1) less favourable treatment of an individual because they had either rejected or submitted to sexual harassment; or (2) harassment related to any protected characteristic, including sex-based harassment. Here the statutory defence remains available to employers.

What is the current duty to prevent sexual harassment at work?

Firstly, let’s consider what is not changing on 26 October 2024:-

• sexual harassment based on unwanted conduct of a sexual nature in the workplace is and will continue to be unlawful under the Equality Act 2010.
• employers are vicariously liable for the unlawful discriminatory and harassing behaviours of their employees in the course of employment – including sexual harassment;
• unlike other areas of employment law, both employers and individual employees can be named as respondents in an employment tribunal claim for sexual harassment (as well as discrimination and harassment more generally); and
• compensation for sexual harassment (as for all harassment and discrimination claims) is potentially without limit.

Under the current law, if employers can show it took all reasonable steps to stop sexually harassing behaviour(s), then it can seek to rely on what is known as the statutory defence.  The statutory defence applies (and will continue to be available) in discrimination and harassment cases. However, not all employers either choose to, or are able to, demonstrate they have taken all reasonable steps to prevent discrimination, harassment, and sexual harassment from occurring.  The ability of employers to show it has embedded policies, manager training around equality and harassment is inconsistent, putting it mildly!  Also, under the current defence regime, the previous government believed there is no incentive on employers to combat or prevent sexually harassing behaviours at work – hence the change.

What’s changing – preventative duty, acting before an act occurs

The duty on employers with regards to unwanted conduct of a sexual nature is changing.  From 26 October, there will be a duty on all employers to take reasonable steps to prevent sexual harassment in the course of employment.  You’ll note the key word: prevent.  The new duty from 26 October 2024 is a positive legal duty and a preventative one. If employers cannot show they have taken preventative reasonable steps, they will fall foul of the new obligations. Non-compliance will not be an option in the Tribunal.

According to the proposed new EHRC Guidance, which accompanies the new Act, “the preventative duty is an anticipatory duty”. It is at this point; employers need to take note.  The new duty means that employers cannot wait until there is an incident of sexual harassment before taking any preventative action. From my own experience, I often only see employers spring into action with preventative measures as a reaction to a complaint.  From October, employers will be under a new duty to risk assess and anticipate different situations where sexual harassment may take place at work and take steps reasonable steps to prevent it before it arises. 

Is this a standalone claim?

I should say that a failure to meet the “reasonable steps” obligation does not give rise to a free-standing claim.  This means that a worker cannot sue their employer directly for not offering workplace training, for example.  What it means is that the new duty is only examined by a tribunal – and the impact this may have on compensation (see below) - once a claim for sexual harassment is made out by a claimant.

What about third-party harassment?

As many of you will remember, I have mentioned and spoken previously, that the passage of this piece of legislation has not been the smoothest, primarily because of the original insertion of third-party harassment liability.  This caused much concern to the leisure and hospitality sector as well as free speech commentators – is it the role of employers to police the speech of its customers? This element of the legislation was removed before it was passed. There is, therefore, no specific claim for third party harassment in the new legislation. Workers may be able to bring other claims regarding third party harassment (constructive unfair dismissal as an example or harassment more generally). Therefore, it is still a relevant and important part of an employer’s anti-harassment strategy.

However, in the EHRC draft guidance, it states that sexual harassment of a worker can be committed by:

• another worker
• an agent acting on behalf of the employer
• a third party [my emphasis]

There is also specific reference in the draft EHRC guide for the need for employers to take “reasonable steps to prevent sexual harassment of workers by third parties, such as clients and customers”.  The draft Guidance continues, “if an employer does not take reasonable steps to prevent sexual harassment of their workers by third parties, the preventative duty will be breached.”

Who is a third party? The EHRC guidance lists people like clients, customers, patients, service users, delegates at a conference or members of the public.  It advises employers to consider the risk of workers meeting third parties.  For example, employers will need to think about the various situations at work when workers come in to contact with third parties, when/if sexual harassment might occur and then to take reasonable steps to prevent such harassment.

So where do employers stand?

Although, I do not think employers will face compensation increases for sexual harassment (unwanted conduct) claims, this should not mean that such risks should be ignored.  Workers can bring other claims in respect of third-party harassment. We know that Labour have mentioned their desire to strengthen sexual harassment legislation (to include “all reasonable steps”) as well as reintroduce third party harassment.  Also, remember that the EHRC will have enforcement and investigatory powers (see below), and would be able to investigate complaints of third-party sexual harassment. Therefore, it would be wise for businesses to consider the risk of third-party sexual harassment as part of their auditing and risk assessment processes and put in place measures to protect workers. 

What does “in the course of employment” mean?

The new mandatory, preventative duty applies to acts of sexual harassment which occur “in the course of employment”. The definition of “in the course of employment” is potentially very wide and does not include Monday-Friday, 9-5.  In the course of employment can include after work events, conferences and away days, workplace socials, client events, even impromptu get togethers in some cases. 

What are “reasonable steps”?

This new duty is all about employers assessing and anticipating where its workers may face sexual harassment and act in advance to prevent it.  We are moving from the reactive to the proactive.  Although not defined in the legislation, reasonable steps will vary from employer to employer.  If we look at the draft EHRC guidance, it says that the size of the employer, the sector, the working environment, and its resources would be considered in assessing whether the employer had indeed taken reasonable steps. According to the EHRC “different employers may prevent sexual harassment in different ways, but no employer is exempt from the sexual harassment preventative duty.”

How can compensation be increased?

Under the new Act, if an individual succeeds in a claim for sexual harassment for unwanted conduct of a sexual nature and is awarded compensation, an employment tribunal must consider whether the employer has complied with the new preventative duty. If it considers the preventative duty has been breached, compensation could be increased by up to 25%. When compensation for sexual harassment is potentially without limit, this could make a huge difference to a claimant’s compensation and costs to the employer. A 25% increase is not automatic; however, an uplift will depend on the severity of the breach/non-compliance by the employer. 

What about the Equality and Human Rights Commission (EHRC)?

Under the New Act, the EHRC will receive increased powers to not just investigate complaints about sexual harassment at work but also to issue an “unlawful act notice”, to enter into legally binding preventive agreements, as well as to seek injunctive relief against an employer.

The EHRC has also produced new draft guidance on the changes. The consultation closes on 6 August 2024.  The Guide is just that a “guide”, although it could be used in evidence before a tribunal.  Also expect changes to the statutory code in due course.

How Boyes Turner can help?

Talking the talk when it comes to harassment and sexual harassment is all well and good; however, what is going to be vital is being able to walk the walk as well.  In preparation for the coming change, Boyes Turner can help you with:-

Equality/Sexual Harassment Audits

What is your business’s overall approach to equality and the prevention of workplace sexual harassment? Let us:

• Review your policies and contracts – what do you have, do you have a sexual harassment policy? Where are the gaps and what polices do you need?
• Plan, devise, and deliver HR/Manager and Staff training programmes - we can devise, plan, and deliver comprehensive awareness and update sessions for HR, managers and all staff which focus on the new obligations and the key risk areas.  Virtual, in person or eLearning programmes to meet your business’s needs.
• Risk Assessments – A key feature of the new obligations.  We can assist you in not just identifying risk areas but also problem solving.  This could include updating your employment policies, manager training, assisting you with monitoring and evaluating anti-harassment processes more generally to ensure these are effective, discuss with you balanced solutions to help you meet the requirement of taking “reasonable steps”.  Helping you create a culture of transparency and openness.
• Conduct an independent staff survey – how do your staff feel about the culture within the business in relation to sexual harassment, how is workplace culture viewed?
• Audit previous allegations of sexual harassment - helping the business understand the lessons learned
• Focus on your staff complaints procedures - We will review your grievance and complaints procedures and assess whether these encourage and support those who come forward with workplace complaints (not just unwanted sexual conduct) or is there a culture of silence. How effectively do you use your EAP’s or internal champions?

Our audit can also be part of a wider equality and/or gender pay gap review.

Next steps

Some businesses will be more advanced than others when it comes to preventing sexual harassment at work.  There is an opportunity here to think about the risk areas and put in place practical and impactful steps to help protect workers at work.  Talking the talk will not be enough, it is time to put the words into practice.  Please speak to our team if we can help.