Born from research conducted by the Equality and Human Rights Commission (‘the EHRC’), it signals a change in the legal landscape regarding sexual harassment in the workplace.
It’s also one of the relatively rare instances of employment law imposing a positive duty on employers (e.g. ‘thou shall’, versus ‘thou shall not’).
As such, it’s something all employers should be considering now, as compliance by default is not really an option.
With our usual aim of keeping things simple and practical – we take a deep dive into what’s changing and what you need to do to prepare.
The change is by no means a rewrite of the law relating to sexual harassment or discrimination.
The well-established definition of sexual harassment remains unchanged (and we look at that in a bit more detail below).
However, it will amend the existing Equality Act 2010, so as to:
So the change imposes a new preventative duty on employers, but it doesn’t go as far as to create to a new free-standing claim.
Put another way: an individual cannot bring a claim against an employer solely for failure to comply with the new preventative duty. The new duty will only ever be considered by an Employment Tribunal if a claim for sexual harassment has been
brought and succeeds.
So, if (and only if) an individual succeeds in a sexual harassment claim, the Tribunal will then go on to consider whether or not the new preventative duty has been breached.
If it has been, the compensation awarded (which can be significant in discrimination cases) may be uplifted by up to 25% - so the potential additional sanction could be chunky.
Not quite.
At present a claim of sexual harassment may be brought against an individual (i.e. the alleged perpetrator) and/or the employer.
The rationale being that an employer is vicariously liable for the actions of its employees taken in the course of their employment.
So an individual who is subject to sexual harassment has the option to pursue their claim against the alleged perpetrator and/or the employer.
In most cases the employer will be included in proceedings, as it will generally have the deeper pockets and be better placed to meet any award for compensation.
As the law stands currently, an employer will have a defence to such a claim if it can demonstrate it took ‘all reasonable steps’ to prevent the sexual harassment from occurring.
So at present employers are incentivised to prevent it - as they may avoid vicarious liability if they do - but they are not under an express duty to prevent it.
That’s the key change.
They basically sit side-by-side.
In practice, the existing statutory defence is difficult to establish: ‘all reasonable steps’ is quite a high threshold. It involves demonstrating that no further reasonable steps could have been taken (other than those steps that were taken).
The new preventative duty relates to ‘reasonable steps’ only, which makes it a lower threshold. During the passage through parliament there was some wrangling on this wording. The ‘all’ didn’t make the final cut, and we ended up with the slightly watered down version.
This gives rise to the prospect that, in theory, an employer could be held:
However, we digress. We’ll leave the theoretical anomalies for case law to grapple with.
The practical takeaway is that it’s far better for employers to aim for ‘all reasonable steps’ - as that way they will both comply with the new preventive duty and benefit from the statutory defence.
And, more importantly, taking such steps should limit the prospect of sexual harassment arising in the first place.
Good question, we probably should have started with this.
Defined in s.26(2) of the Equality Act 2010, ‘sexual harassment’ is:
This definition (or a similar version of it) has been in place for decades. So nothing is changing in that regard.
The legislation doesn’t define what is meant by conduct of a ‘sexual nature’, but it’s fairly broad. It will include sexual language, inappropriate physical contact, sexually suggestive remarks (jokes, ‘banter’ etc.), as well as actual sexual misconduct.
In assessing the effect of the conduct, a Tribunal will focus on how it was perceived rather than the intent behind it.
So whether or not a person actually intended a comment or a gesture to land in a certain way is largely irrelevant. It’s how the conduct is perceived that really counts.
The Tribunal will consider the full circumstances of the case and always look at whether it was reasonable for the conduct to have had that effect (as context is often key).
However, the main point to note is that the definition is broad, and it captures a whole range of behaviours other than just point-blank sexual misconduct.
As always, the key question.
It would be nice if we were able be able to trot out a ‘one size fits all’ prescribed list here.
However, the reality is that the risk and, therefore, the ‘reasonable steps’ required to address it, will vary from business to business.
There is some helpful guidance though.
In January 2020, the EHRC provided technical guidance on the topic (‘the Guidance’), which can be found here.
It has recently updated the Guidance to reflect the forthcoming changes, and on 9 July 2024, launched a consultation on the new proposed elements, which can be found here.
The proposed updated Guidance may change between now and 26 October 2024, depending on the outcome of the consultation. There are parts, particularly those relating to harassment by third parties, that appear to go beyond what the underlying law requires.
The fundamentals are unlikely to change though, and the starting point suggested by the updated Guidance is for employers to:
A risk assessment would be a sensible first step.
If an employer doesn’t effectively calibrate the risks, it’s unlikely to be in a position to consider what ‘reasonable steps’ might reduce them.
A good risk assessment will also involve identifying ‘risk hotspots’ within the workplace and steps that might be taken to mitigate them.
The updated Guidance sets out the following example risk factors:
This list is not exhaustive and, as HR professionals will attest, other common risk points are: work events (whether social or professional); personal relationships at work; and WhatsApp or other instant messenger groups or forums.
Also, the risk may be more prevalent in certain sectors, in certain areas of a particular business and/or even at certain times of the year (such as party season).
The important thing is to assess the risk relating to your business and then take reasonable steps to mitigate it.
Having assessed the risks, the next step is determining what steps are ‘reasonable’ to address them.
In deciding whether a preventative step is ‘reasonable’, the Guidance recognises that an employer may weigh how effective a step may be against other factors, such as time, cost and potential disruption that might be caused in taking the step.
The Guidance also acknowledges that what constitutes ‘reasonable steps’ will vary depending on:
That said, there are some fundamental steps that are likely to apply to most employers, and the Guidance includes the following:
In reality, these steps have long formed the basis of an effective approach to the issue, and most employers will be very familiar with them.
However, the risks and, therefore, the steps required to address them will vary – and so conducting an effective risk assessment is a sensible first move in planning your organisation’s approach to the forthcoming changes.
Yes, it’s absolutely worth bearing these in mind too.
The new law extends the ECHR’s existing enforcement powers so as to cover any non-compliance, or suspected non-compliance, of the new preventative duty.
These enforcement powers include the ability to:
The EHRC may opt to investigate an employer in the absence of any claim and based on suspected non-compliance alone. Strictly, there does not have to be a confirmed incident of sexual harassment for an investigation to occur.
The EHRC cannot bring a free-standing claim against an employer on its own account – so, in effect, the sanction is limited to the reputational and operational effects associated with such an investigation. But still very much something to be avoided.
In practice the EHRC may elect to expend its finite resources on enforcement action against confirmed, rather than suspected wrongdoing. That remains to be seen, but it has made it clear that it can launch an investigation based on suspected non-compliance only.
The new law is an important change, but it’s by no means an overhaul.
Rather than providing individuals with new free-standing rights, the change simply increases the potential sanction on employers, and the potential compensation to individuals subject to sexual harassment.
It increases the stakes of getting it wrong, rather than giving employers more things to get wrong.
Presumably, the rationale is that increasing the potential sanction will prompt a further cultural shift in the right direction and increase levels of anticipatory prevention.
The specific steps outlined above are, of course, vital. Plus, in addressing this issue generally – as with all forms of discrimination - having a positive, respectful and inclusive culture is absolutely key.
The cultural tone of any organisation – whether good or bad - is set from the top. So the values and behaviours to which any organisation aspires should be both ‘talked’ and ‘walked’ by its leadership.
It seems an obvious point, but people take their behavioural cues from what they see and hear from management. Having leaders communicate and embody the conduct and values you wish to promote is extremely potent in fostering the right culture.
The future may hold other developments in this this area. The new government has stated its intention to extend this new preventative duty so as to require ‘all reasonable steps’, and to expressly address the issue harassment from third parties.
So there may be more to come…
For now though, employers should be taking steps to get ahead of this new duty. Not only to ensure legal compliance - but, more importantly, to promote healthy work environments and limit the prospect of such issues arising in the first place.
