Employers required to take action to prevent sexual harassment

Employers will soon be legally required to act to prevent sexual harassment of their staff at work. This will include sexual harassment by third parties such as customers and suppliers.

The government has adopted the Worker Protection (Amendment of Equality Act 2010) Bill, which is currently progressing through parliament.

This is a Private Members’ bill to alter the Equality Act 2010 and impose duties on employers for failure to take reasonable steps to prevent:

• the sexual harassment of their employees in the course of their employment; and
• the sexual harassment of their employees in the course of their employment by a third party (with no requirement for the employer to have knowledge of previous occasions of such sexual harassment).

Assuming the bill receives the Royal Assent, the Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force one year later.

What does this mean for employers?

There will be two new, separate but complementary, duties on employers. Employers will need to take action in readiness for both duties.

1. Duty requiring employers to take all reasonable steps to eliminate sexual harassment of an employee in the workplace.

Sexual harassment is defined as unwanted conduct of a sexual nature. This new duty will be enforceable by the equality regulator, the Equality and Human Rights Commission (EHRC) with support from the Government Equalities Office (GEO).

While the term 'all reasonable steps' is not defined by statute, existing case law demonstrates that tribunals will want to see that the employer has robust anti-harassment policies and that there is evidence of the steps taken to actively prevent sexual harassment. Employers will have a positive duty to take such steps.

2. Duty requiring employers to take all reasonable steps to prevent third parties from sexually harassing their employee in the course of their employment

The definition of a ‘third party’ is broad. Therefore customers, suppliers and other individuals or organisations that the employer’s staff are in contact with in the course of their employment (but not other employees) can be a third party for these purposes.

If an employee is awarded compensation against their employer in an employment tribunal claim for sexual harassment, and the tribunal considers that the employer was also in breach of this preventative duty, the tribunal will be able to make an uplift of up to 25% in any compensation awarded against the employer.

How should employers prepare?

The EHRC will publish a statutory code of practice after the bill becomes law.

Meanwhile, to prepare for this change, we recommend that employers should do the following:

• Review their end-to-end processes to ensure their anti-harassment policy is effective, fit for purpose and includes a zero-tolerance approach to sexual harassment at work. This policy should be clearly communicated and accessible, such as on a company intranet. It should also be explained to employees at their employment induction - and that communication should be reinforced regularly. The policy must ensure employees know how and to whom they can raise harassment complaints/concerns.
• Provide anti-harassment training for all staff, particularly their management team, on how to deal with sexual harassment reports made and the process they should follow.
• Make clear in their contractual relationships with all third parties the standards of behaviour that must be shown to their staff and the actions that will be taken if any reports of sexual harassment are made. In doing this, the employer should consider the nature of their employees’ respective interactions with third parties. For example, whether they are customer-facing and interacting face-to-face, in a hybrid way or remotely, and assess the sexual harassment risks for each of these interactions.
• Be aware that sexual harassment can be both verbal and physical and can happen out of office hours or online.
• Be mindful of ‘office banter’ which can lead to an employee feeling uncomfortable or intimidated.
• Ensure complaints are thoroughly investigated, and where necessary, appropriate action is taken and documented.

If you are an employer and would like support on any of the planned proposals discussed in this article, please contact Jennifer Mansoor.