New Duty on Employers to Prevent Sexual Harassment in the Workplace

The existing principle that employers can be found vicariously liable for the discriminatory actions of their staff has long been recognised as an area of risk for businesses when considering that tribunal compensation in this area is uncapped.  

However, if an employer can show that it has taken all reasonable steps to prevent the harassment from happening, it could argue in its defence that it did all it reasonably could to prevent it so should not be found liable. This defence has a high threshold for employers to satisfy.

Aside from these existing risks, the new law will add further consequences to employers in the circumstance of a complaint of sexual harassment only.

Why is the focus on sexual harassment only?

Following the initial traction of the #MeToo Movement in 2017, statistics collated in the following years in the UK have revealed our own endemic issue. TUC’s survey revealed that 68% of LGBT+ staff had reported sexual harassment. The BBC’s tally in 2019 found that 40% of women and 18% of men reported sexual harassment at work. Updated figures from TUC’s survey confirmed this had increased to 52% of women.

This increase may be a reflection that more people now feel confident to report the issue than before however, these numbers must still account for those who may not feel able to make reports for fear of retaliation or for lack of trust in the process that real action will be taken.

The upcoming legal changes focussed solely on the prevention of sexual harassment are intended to bolster the existing protections by requiring employers to actively implement more preventative protections which are reasonably within their reach.

Can employees bring a claim for not preventing sexual harassment?

The act does not introduce a new cause of action as a standalone claim for failing to prevent sexual harassment. An employee must bring a claim for sexual harassment in the usual way under the existing provisions of the Equality Act, i.e. for unwanted conduct of a sexual nature.

If this conduct was perpetrated by a colleague, the employer can rely on the above defence if it can show it took all reasonable steps to prevent it from happening. But, if the claim succeeds, then the Tribunal, in accordance with the new act, must consider whether the employer breached its duty to take only reasonable steps to prevent sexual harassment.

If the Tribunal finds that the employer unreasonably failed to comply with the preventative duty, then the new act provides the Tribunal the power to award an uplift on the compensation by up to 25%.

What if the sexual harassment was by a third party?

Where an employee’s complaint of sexual harassment does not relate to the conduct of a colleague, but instead to a customer or other third party, then the new act does not apply in the same way.

This does not mean that employers should simply ignore such complaints! The EHRC issued guidance that states the preventative duty applies to third parties. So, whilst vicarious liability could not be found under the new act, nor an uplift applied, the EHRC could take enforcement action in relation to a failure to prevent sexual harassment by a third party.

This enforcement action can include an investigation of the employer, the issuing of an unlawful act notice upon a finding of a breach, a requirement for the employer to prepare a plan to remedy the breach and enter a binding agreement to prevent future unlawful acts and taking injunctive action to restrain an employer from committing an unlawful act.

Reasonable steps can be taken by an employer to prevent third-party harassment such as by the presence of clear signs in open and public areas that harassment towards staff will not be tolerated. This could also be placed on tickets, entranceways and receptions, on telephone recordings before calls are commenced and in shared facilities such as bathrooms.

What do employers need to do now?

Some initial steps that can be taken by employers to ensure there is evidence of compliance with the new duty could include:

• Reviewing and updating (or introducing!) a sexual harassment policy to outline what behaviours amount to a breach, clarification of the employer’s no-tolerance approach, and details of the reporting process including details of possible consequences for the perpetrator.
• Training for all staff on boundaries and unacceptable behaviour, but particularly additional training to equip managers with the skills to sensitively deal with a report in a strictly confidential manner. Also, how to offer additional support especially where the matter may have also been reported as a criminal offence.
• Committing to training for all levels should, over time, assist in creating a positive culture which encourages staff to speak up and have their concerns taken seriously without fear of being seen as a troublemakers. There are a vast number of courses that can be taken, for example, unconscious bias, diversity awareness, inclusive leadership, and micro-aggressions training.
• Take stock of existing data or set up an anonymous survey to canvass the feeling amongst staff about whether they feel they could, and would, rely on the current processes in place or how they would suggest they can be improved.
• Conduct risk assessments of different roles and types of work to identify risk factors and determine the relevant actions that can be taken to minimise it, such as public-facing, lone working, diversity quotas e.g. male-dominated industry or team.

If you require assistance with a review of the measures in your business or for advice on the new changes, contact Phoebe Gogarty at pgg@swinburnemaddison.co.uk or call us at 0191 384 2441.