From 26 October 2024, there will be a new positive obligation on employers to take reasonable steps to protect workers from being sexually harassed at work.

Any employer found in breach of this duty may face the following consequences:

  • They may be ordered to pay additional compensation (of up to 25%) to any worker who succeeds in a claim of sexual harassment against them; and
  • They could be investigated by the Equality and Human Rights Commission and have enforcement action taken against them.

How does this change the current law on sexual harassment in the workplace?

Currently, under the Equality Act 2010, workers are protected against sexual harassment and less favourable treatment because they have rejected, or submitted to, conduct of a sexual nature. The sexual conduct must be unwanted by the victim and have the effect of violating their dignity or otherwise create an environment that is intimidating, hostile, degrading, humiliating or offensive to them.

Employers are liable for their own acts of harassment and those carried out by their staff in the course of their employment, unless they can show that they took all reasonable steps to prevent harassment or discrimination.

The new duty for employers

This places an additional duty on employers to take pro-active steps to prevent sexual harassment in their workplaces.

In accordance with current law, the new regulations will also apply to sexual harassment that occurs “in the course of employment”. This will include behaviour that takes place outside of the physical workplace, so incidents that occur during work related events , such as office parties and work events will be covered.

Can a worker bring a claim against their employer for failing to prevent sexual harassment?

Yes, but only if the worker has already succeeded in their claim for sexual harassment under the Equality Act. It is only once that hurdle has been met that the tribunal must consider whether the employer took “reasonable steps” to prevent it. If they have not taken “reasonable steps” the employment tribunal can uplift any compensation awarded to the victim by up to 25%.

What reasonable steps should employers take to prevent sexual harassment?

What is reasonable will vary from employer to employer and will depend on the employer’s size, the sector it operates in, the working environment and resources available to it.

The guidance recommends that employers should consider:

  • The risk of sexual harassment occurring in the course of employment which may be higher where staff interact more with the public;
  • What steps it could potentially take to reduce those risks and prevent sexual harassment of their workers;
  • Which of those steps it would be reasonable for it to take and then implement them.

The Equality and Human Rights Commission has published draft changes to its guidance on sexual harassment and harassment at work and is running a short consultation period to make sure that the guidance meets its objective of being clear and helpful.

Does the new duty apply where staff are sexually harassed by third parties?

As the law currently stands, there is no right to bring a claim against an employer relating to harassment by third parties under the Equality Act 2010. Despite this, the guidance makes reference to workers being sexually harassed by third parties. It is speculated that this could be as a result of the governments indication that it may re-introduce protection against third party harassment in the future.

Talk to our Employment Law Solicitors

If you have questions about anything covered in this article, please get in touch with our Employment Law Solicitors by calling 020 7421 9421 or emailing sols@gordonsols.co.uk.

 

About the Author

Yasmin Awan

Solicitor