Sexual harassment at work: New Law and New Guidance
The law on preventing sexual harassment in the workplace is changing. It is important for everyone to be aware of this.
What is sexual harassment?
Sexual harassment occurs when someone is subjected to unwanted conduct of a sexual nature which has the purpose or effect of either violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The conduct need not be sexually motivated, only sexual in nature.
Both men and women can be victims of sexual harassment. A single incident can be enough to constitute harassment. It can occur even if a harasser does not intend to cause offence, but it has the effect.
In a recent survey by the Institution of Civil Engineers (ICE), nearly half of all female respondents reported having being a victim of sexual harassment at work within the last 4 years. This is a concerning statistic which highlights the prevalence of sexual harassment within the wider STEM sector, which had traditionally been a male dominated environment.
Sexual harassment can have significant and far-reaching negative effects on those who experience it. They can experience diminished career advancement and productivity (which can lead to loss of talented individuals in the field). Serious mental health issues (such as anxiety, depression and PTSD) can develop and physical health can also be affected by chronic stress. Hostile work environments can be created which can negatively affect overall team morale and productivity. It can also exacerbate existing gender disparities within the STEM sector.
What is changing?
Currently, there is no proactive legal obligation on employers to take active steps to prevent sexual harassment at work. However, on 26 October 2024, the new Worker Protection (Amendment of Equality Act 2010) Act 2023 (“Act”) will come into force. The Act will introduce a new preventative duty on employers to take reasonable steps to prevent sexual harassment of their employees and workers in the workplace. The Act will amend the Equality Act 2010 to introduce this new positive duty and aims to create a safer workplace environment.
If an employer breaches this new preventative duty, there will be consequences. The UK’s equality watchdog, the Equality and Human Rights Commission (“EHRC”), will have the power to take enforcement action against the employer and employment tribunals will have the power to increase compensation by up to 25% where an individual succeeds in a claim for sexual harassment and the tribunal finds that the employer failed to take reasonable steps to prevent it. Given that compensation awards for harassment claims are uncapped, failure to comply with the new duty could be costly for complacent employers.
EHRC guidance
The EHRC recently conducted a consultation seeking views on proposed amendments to its existing technical guidance on sexual harassment and harassment at work (issued in 2020) to include information on this new preventative duty so that employers, workers and their representatives understand how the Equality Act 2010 prohibits harassment at work.
The amended guidance, which has taken on board comments made during the consultation, was published in September 2024. Key points include:
- Making it clear that an employer is unlikely to be able to comply with the new preventative duty unless they carry out a risk assessment.
- Providing a brief, eight step guide for employers on preventing sexual harassment at work. This summarises the detail found in the guidance itself.
- Clarifying that the new preventative duty is different to the reasonable steps defence for harassment. The guidance states that it is a “separate positive legal duty that requires employers to take reasonable steps to prevent sexual harassment of their workers”. Unfortunately (and unhelpfully), the guidance does not set out how it is different.
- Making it clear that the new preventative duty only applies to sexual harassment (i.e. it does not extend to harassment based on other protected characteristics such as race, age, sexual orientation, belief nor harassment which is related to sex but is not conduct of a sexual nature). However, these types of harassment are also unlawful and employers should take steps to prevent all types of harassment at work.
- Explaining that whether or not an employer has taken reasonable steps to prevent sexual harassment is an objective test, and will depend on the facts and circumstances of each situation.
- Requiring employers to take reasonable steps to prevent sexual harassment by their own workers and by third parties such as clients and customers. The extension of liability for harassment to acts of third parties was removed from the original Act when it made its way through the House of Lords. However, the EHRC guidance suggests that the new preventative duty will apply to actions in relation to both employees and third parties. From this it can be inferred that the EHRC will use its enforcement powers if it finds that an employer is failing to protect its employees from sexual harassment by third parties.
- Anticipating that reasonable steps will vary depending on the size and resources of the employer but also emphasising that no employer will be exempt from the preventative duty.
- Emphasising that the preventative duty is an anticipatory duty i.e. employers should anticipate scenarios when its workers may be subject to sexual harassment in the course of their employment and take action to prevent this from taking place. If sexual harassment has taken place, the preventative duty means that an employer should take action to stop this from happening again.
- Explaining that an individual cannot bring a claim for breach of the preventative duty alone but also making it clear that the EHRC has the power to take enforcement action against employers who breach the preventative duty.
The EHRC’s amended guidance can be accessed here.
What do employers need to do?
Many employers will already have processes in place to prevent sexual harassment taking place. However, when this new duty comes into force later this month, employers will need to be able to demonstrate that they have reasonable steps in place to prevent sexual harassment. This could include carrying out a risk assessment, ensuring policies and procedures are up-to-date and providing training to staff.
If you would like further information on this topic, please do not hesitate to contact a member of BTO’s Employment Law Team.
This update contains general information only and does not constitute legal or other professional advice.
Lesley Grant, Associate: ljg@bto.co.uk / 0141 221 8012 / Connect with Lesley on LinkedIn
