New Employment Obligation

A new obligation on employers to prevent sexual harassment comes into force this year. Our Head of Employment, Iain Jenkins, looks at the implications.

A new law on the prevention of sexual harassment will come into force in October this year. The Worker Protection (Amendment of Equality Act) Act makes changes to the law on an employer’s obligations to protect employees from sexual harassment.

It is important that employers are aware of this new legislation and take all necessary steps to comply to help avoid potentially expensive and damaging litigation. There will now be a positive requirement for employers to take reasonable steps to prevent sexual harassment of employees in the course of their employment.

Sexual harassment has the same definition as in the existing Equality Act being unwanted conduct of a “sexual nature”.  There is a defence for employers that they can show they have taken reasonable steps to prevent sexual harassment from happening, however it is important to emphasise that there will be a legal obligation on all employers to take proactive measures to prevent sexual harassment. Interestingly the duty does not apply to harassment based on the other protected characteristics in the Equality Act, nor does it apply to harassment which is related to sex but is not conduct of a sexual nature. There is also no requirement to prevent harassment of employees by third parties such as customers of the employer.

We are awaiting guidance from the EHRC in respect of this new legislation but it is clear that employers should not regard compliance as a tick-box exercise, a simple policy and email to employees saying that the policy exists will not be sufficient. Employers will be expected to show:

• allegations are noted and recorded;
• there has been training in addition to the implementation of policies;
• training is revisited and updated, including training for those who witness sexual harassment;
• policies are updated;
• there are appropriate mechanisms for disclosing sexual harassment;
• risk assessments are conducted; and
• consideration is given to working environments and practices.

You should look at these steps and your preparations now so that knowledge and understanding are well-embedded in your workplace before the new legislation comes in to effect.

There appear to be some industries and areas of life where this issue remains more prevalent and corrosive. High profile cases receive regular media attention. Individuals suffer lasting harm and mental distress. Quite apart for the damage to the victim and reputational damage, the financial cost of a successful claim against an employer could be significant. An employment tribunal will be able to uplift compensation by 25 per cent (including for other areas of harassment if such claims are brought) if an employee succeeds in a claim for sexual harassment and the employer is in breach of its duty to take reasonable steps to avoid the sexual harassment.