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Employers Have New Legal Duty To Prevent Sexual Harassment In The Workplace - Portner

 

A new duty that came into force in October 2024 requires employers to take “reasonable steps” to prevent the sexual harassment of employees. In this article, consultant Karen South explains the new rules and also looks at the guidance for employers on developing appropriate plans and policies

What does the new duty add to the existing law relating to sexual harassment?

Sexual harassment in the workplace is already prohibited by the Equality Act 2010. It takes place when a person is subjected to unwanted conduct of a sexual nature, and such conduct violates that person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. Examples of conduct of a sexual nature include sexual comments or jokes, making promises in return for sexual favours and unwelcome kissing, touching or hugging.

The effect of the conduct is determined from the person’s subjective point of view; the harasser’s intentions are irrelevant.

Am employer can be held vicariously liable for sexual harassment by of one of their employees if it takes place during employment, which includes social events and out-of-hours parties.

However, the employer would have a defence to the claim if they took “all reasonable steps” to prevent the harassment. This is a high threshold. Appropriate steps would include preventative measures such as training, for example. If sexual harassment has already taken place, then the employer should take action to stop it happening again. This includes sexual harassment by third parties.

The new measure goes further. In addition to the existing duties on employers, it imposed a duty to take proactive steps to prevent sexual harassment of employees while at work by taking reasonable preventative action. This would include anticipating scenarios in which employees may be subjected to sexual harassment and risk assessing against those scenarios. “Reasonable steps” is an objective test and will depend on the circumstances of each case and factors such as the company’s size and work environment.

What are the consequences if an employer fails to comply with the new duty?

The new duty does not establish an independent cause of action against employers. A tribunal can only consider allegations of a breach of the new rules once an employee’s claim for sexual harassment has been upheld.

If an employee succeeds in a sexual harassment claim and the employer is found to have breached the new preventative duty, the tribunal can increase the compensation award by 25%. This could be a significant uplift given that there is no upper limit for compensation for discriminatory harassment.

In addition, the Equality and Human Rights Commission (ECHR) has been given powers to enforce the new duty regardless of whether a breach of the Act has occurred. These powers allow them to investigate employers, issue an unlawful act notice requiring the employer to prepare an action plan to remedy breaches and prevent future breaches, and require employers to enter into binding agreements to take steps to address issues of discrimination or harassment. The ECHR can also seek an injunction against an employer to restrain it from committing an unlawful act.

What should employers do to comply with the new rules?

The ECHR has published a guide for employers on the reasonable steps they should take to prevent sexual harassment of their employees.

Employers would be well-advised to update their anti-harassment policy and carry out a regular risk assessment programme to assess the risks to their employees of being sexually harassed and put in place steps to minimise them.

They should also consider training their managers and staff on what constitutes sexual harassment and explain that the consequences of committing sexual harassment will lead to disciplinary action, possibly even dismissal or cancellation of third party contracts. Employers should also institute a system for reporting complaints.

If you have any queries about the new sexual harassment law or any other employment issues, please contact Karen South at ks@portner.co.uk.

For more information visit our website : https://www.portner.co.uk

T 020 7616 5300

 


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