REASONABLE STEPS FORWARD IN PREVENTING SEXUAL HARASSMENT
Government set to impose new mandatory requirement on employers to take ‘reasonable steps’ to prevent sexual harassment
‘Harassment’ in an employment context is defined in the Equality Act 2010 as ‘unwanted conduct related to a protected characteristic that has the purpose of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.’
Under the Equality Act, employers can be liable for acts of harassment committed by their employees in the course of their employment, unless they can establish that they took ‘all reasonable steps’ to prevent that act of harassment occurring (‘the reasonable steps defence’).
"Once introduced, employers will be under a new, mandatory duty to take ‘reasonable steps’ to prevent sexual harassment in the workplace.
This means that, where an individual is successful with a sexual harassment complaint, a tribunal can then go on to consider whether the employer has complied with the new, mandatory requirement to take reasonable steps to prevent the sexual harassment."
To succeed with this defence in the tribunal, typically Employment Judges will expect employers to evidence that they have, at the very least:
implemented an equal opportunities policy and an anti-harassment and bullying policy, and regularly reviewed and updated those policies.
made all employees aware of the policies and their implications.
provided adequate training to all staff on equal opportunities and discrimination and ensured that this training properly addresses any issues that are known to exist in the workplace.
trained managers and supervisors to identify and handling equal opportunities and harassment issues.
taken seriously and acted on any previous complaints of harassment.
Where a Judge is not persuaded that an employer has taken all reasonable steps to prevent the harassment occurring, the right to rely on the defence will fall away, and the claimant may well succeed with their claim. Compensation will then be awarded to take into account any loss of earnings suffered (and likely to be suffered) by the individual as a result of the harassment (this element of the award being uncapped), and any ‘injury to feelings’.
New legislation
As we reported in April, the government has recently been considering the Worker Protection (Amendment of Equality Act 2010) Bill, which (after some negotiation) is now likely to come into effect in Autum 2024.
Once introduced, employers will be under a new, mandatory duty to take ‘reasonable steps’ to prevent sexual harassment in the workplace.
This means that, where an individual is successful with a sexual harassment complaint, a tribunal can then go on to consider whether the employer has complied with the new, mandatory requirement to take reasonable steps to prevent the sexual harassment.
"...despite the removal of this provision, we would urge clients to properly safeguard their staff and to make it clear to 3rd parties wherever possible (and ideally in any commercial contracts in place) that harassment of any type against its employees will not be tolerated."
Where the Tribunal finds it hasn’t, it can then go on to award the claimant up to an additional 25% of their compensatory award.
It should be noted that the mandatory requirement will involve a duty to take ‘reasonable steps’ and not ‘all reasonable steps’, which the Bill initially proposed; some MPs raised concerns that a duty to take ‘all reasonable steps’ would have placed too onerous of a burden on employers, and in July 2023, the House of Lords agreed, ultimately signing off on the more ‘watered down’ version of the requirement.
However, regardless of this amendment to the Bill, we believe employers have a moral obligation to do everything in their power to prevent harassment – of any form – in the workplace. Ultimately, taking proactive steps to foster a zero-tolerance culture – starting with those steps outlined above – should mitigate your risk of these claims arising at all, put you in a strong position to defend any claims that do arise, and make you an employer of choice for a workforce which is (thankfully) becoming increasingly confident to stand up to, and call out, instances of harassment.
We should also add that the Bill had provisionally sought to reintroduce the right for individuals to sue their employer for acts of harassment committed by third parties (e.g. clients, customers or suppliers). This provision has however now been removed from the Bill, again in July and after concern was expressed over the potential effect on the freedom of speech, and the possibility that employers would be liable for claims of harassment (and significant legal costs) where their employees had overheard offensive conversations – perhaps between two customers - during their working day.
Again, despite the removal of this provision, we would urge clients to properly safeguard their staff and to make it clear to 3rd parties wherever possible (and ideally in any commercial contracts in place) that harassment of any type against its employees will not be tolerated. Ultimately, even without new, express third party harassment legislation, employees are still able to bring claims of harassment under existing Equality Act provisions in the event that employers demonstrate a complete failure to act on complaints about harassment from 3rd parties.