From October 2024 there will be a new duty on employers to take 'reasonable steps' to prevent sexual harassment of their employees in the course of their employment. What does this mean for employers in practice?

What is sexual harassment?

Sexual harassment is when someone is subjected to unwanted conduct of a sexual nature, and the conduct has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. It can also be discriminatory harassment to treat an individual less favourably (for example, refusing them a promotion) because they reject or submit to harassment of a sexual nature.

Both men and women can be victims of sexual harassment. A single incident can be enough to constitute harassment; it can also occur even if a harasser does not intend to cause offence, but this is the effect.

What is changing?

The Worker Protection (Amendment of Equality Act 2010) Act 2023 will introduce a new duty on employers to take 'reasonable steps' to prevent sexual harassment of their employees in the course of their employment.

Employment tribunals will have the power to uplift compensation by up to 25% where an employee succeeds in a claim for sexual harassment and the employer is found to have breached the new duty. The Equality and Human Rights Commission ('EHRC') will also be able to take enforcement action.

What is not changing?

The new mandatory duty to prevent harassment in the workplace only applies to sexual harassment. It does not apply to harassment based on other protected characteristics such as sexual orientation or religion or belief, nor to harassment which is related to sex but is not conduct of a sexual nature.

There was a proposal to re-introduce protection against harassment by third parties, such as customers, but this is not happening at this stage.

What are 'reasonable steps'?

There is no guidance in the legislation on what is meant by 'reasonable steps'. The EHRC is going to update its technical guidance on sexual harassment and harassment at work to reflect the new duty but has not yet done so. 

It is likely that the reasonable steps an employer should take will depend on its size and resources, and the industry in which it operates. 

There is an existing defence to an employer's liability for discriminatory harassment under the Equality Act 2010 if the employer has taken 'all reasonable steps' to prevent the employee from doing the discriminatory act or from doing anything of that description. A lower threshold will apply in connection with the new mandatory duty, as it refers to 'reasonable steps' rather than 'all reasonable steps'. However, on the basis that tribunals are likely to interpret the new duty in a similar way, the following could be reasonable steps: 

  • implementing an effective up-to-date sexual harassment policy;
  • ensuring that employees are aware of policy terms and the consequences of breaching them;
  • providing regular staff training on sexual harassment and expected standards of behaviour, and line manager training on how to handle complaints;
  • providing a clear method for reporting sexual harassment, and dealing effectively with complaints; 
  • adopting a zero-tolerance approach to sexual harassment.

Webinar: dealing with harassment issues in the workplace

We are running a webinar on dealing with harassment issues in the workplace on 2 May 12.30-13:00. 

We will cover both the Worker Protection (Amendment of Equality Act 2010) Act 2023 and the Hate Crime and Public Order (Scotland) Act 2021, working through the considerations for policy and practice and providing our top tips for investigations involving serious harassment and potential criminal conduct.

Contributor

Julie Keir

Practice Development Lawyer