Pump Court Chambers

Sexual harassment at work: the new preventative duty

News, Blog 25th October 2024

Are you prepared for the change in law, coming into force tomorrow (Saturday 26 October 2024) in respect of preventing Sexual Harassment at work? Louisa Simpson has broken down the change in the new legislation, identified helpful definitions and discusses the scope of the new duty, as well as identifying the consequences of failing to comply.

To follow next week – Fergus McCombie goes into detail on the practical steps employers can and should be taking to ensure they aren’t falling foul of the new duty on them to prevent sexual harassment of their employees.

Read on to seek answers to FAQs such as – Does an after-work drinks event count as “in the course of employment”? and – Do employers need to protect their employees against third parties, such as customers?

THE EXISTING LEGISLATION:

s. 26 Equality Act (“EqA”) 2010 identifies three different types of harassment:

  • Harassment related to a protected characteristic;
  • Sexual Harassment; and
  • Harassment (of a victimisation nature) by treating someone less favourably because of their rejection of or submission to sexual harassment or unwanted conduct related to gender reassignment or sex.

s. 109(4) EqA 2010 provides the employer’s “all reasonable steps” defence which employment lawyers will be very familiar with pleading, and seeing pleaded, but will less commonly have seen succeed:

  • “…it is a defence for [employer] to show that [it] took all reasonable steps to prevent [alleged perpetrator] (a) from doing that [discriminatory] thing, or (b) from doing anything of that description”

s. 109(4) doesn’t impose a proactive legal obligation on employers to take any steps to prevent sexual harassment at work – but provides them with a defence if they can show they’ve taken all reasonable steps – which is a high bar to meet.

What isn’t changing?

  • Sexual harassment is still, of course, unlawful under EqA 2010;
  • Employers are still vicariously liable for the unlawful discriminatory or harassing behaviours of their employees in course of their employment, including sexual harassment;
  • Both employers and individuals can be named as respondents in an Employment Tribunal (“ET”) claim for sexual harassment, discrimination or harassment generally;
  • Compensation for sexual harassment is potentially without limit;
  • If an employer can show it took “all reasonable steps” to stop sexually harassing (or other discriminatory) behaviours, it has a statutory defence generally to claims under the EqA 2010.

THE NEW LEGISLATION:

The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force tomorrow, on Saturday 26 October 2024.

It will insert a new s. 40A into EqA 2010: “Employer duty to prevent sexual harassment of employees” –

  • “An employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment.”

It is a preventative, anticipatory and active duty – employers can’t wait until there is an allegation to take action.

It is important to note it does not provide for any free-standing claim in the ET for failure to take reasonable steps to prevent sexual harassment – so an employer can’t be sued for not offering workplace training or having the right policies and risk assessments in place. However, if a claim of sexual harassment is made out against an employer, there may be an uplift in the compensation awarded of up to 25%, if the employer has also failed to comply with their new preventative duty. The Equality & Human Rights Commission (“EHRC”) also has investigatory and enforcement powers which can be used whether or not any sexual harassment has actually occurred.

WHAT IS SEXUAL HARASSMENT?

s. 26(2) EqA 2010:

  • A person (A) harasses another (B) if—
    • (a) A engages in unwanted conduct of a sexual nature, and
    • (b) the conduct has the purpose or effect of—
      • (i) violating B’s dignity, or
      • (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

The (updated) EHRC Technical Guidance on Sexual Harassment (and Harassment) at Work makes it clear sexual harassment at work is to be broadly construed. In particular, and based on caselaw, it can include:

  • Spoken or written words;
  • Displaying pictures or posters;
  • Physical gestures, facial expressions and looks;
  • Jokes, gossip and rumours;
  • Discussing one’s sex life or asking others about theirs;
  • Posts on social media.

It can also be a one-off event or a course of conduct, and can be from someone of the same or opposite sex.

SCOPE OF THE NEW LEGISLATION:

The new duty to prevent sexual harassment of employees applies to sexual harassment in the workplace as well as at work-related events; includes preventing harassment by third parties (such as customers); but doesn’t apply to preventing harassment based on protected characteristics, or preventing harassment because of rejection or submission to sexual harassment.

WHO MUST EMPLOYERS TAKE REASONABLE STEPS TO PROTECT?

Remember, this is discrimination legislation and so it is the broader definition of “employee” which applies, from s. 83(2) EqA 2010:

  • “(2) Employment means—
    • (a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work;
    • (b) crown employment;
    • (c) employment as a relevant member of the House of Commons staff;
    • (d) employment as a relevant member of the House of Lords staff.”

Employers should be aware of the full EqA 2010 provisions relating to the “employee” definition, as well as other working relationships, which would include job applicants, contract workers, police officers, partners in a firm, members of an LLP, personal and public office holders, those undertaking vocational training…

There is no duty to take reasonable steps to protect true self-employed contractors, or other third parties such as clients.

“IN THE COURSE OF EMPLOYMENT”:

The concept of whether or not something is done “in the course of employment” is very wide. It will of course include any place of work – including whether working in the office or from home, at a conference or away days, at client premises, etc. but it will also include circumstances sufficiently “connected with” work. That would likely include after-work events, workplace socials, client events, and may even include impromptu get-togethers in some cases. The more closely connected with work the occasion is, the more likely it will call under the definition of “in the course of employment”. There is, unfortunately, no hard and fast rule and each case will turn on its facts. However, from experience, the ET will be slow to find something fell outside the course of employment where there is any link back to work.

“REASONABLE STEPS”:

The duty is to take “reasonable steps” and not “all reasonable steps” (which is the wording that appears in the s.109(4) EqA 2010 defence, as well as appeared in the original version of the proposed legislation).

What constitutes “reasonable steps” is an objective, factual test, and will vary from employer to employer. The ET will take into account, in assessing which steps are or are not reasonable to expect an employer to take:

  • The size of the employer;
  • The sector in which the employer works;
  • The working environment;
  • The employer’s resources

It is an anticipatory duty, and so employers will be expected to conduct thorough risk assessments, take action to stop sexual harassment if it has already occurred, regularly review, monitor and evaluate the effectiveness of their policies, reporting and investigatory processes, as well as properly training and engaging their staff.

HARASSMENT BY THIRD PARTIES:

This has been the most controversial part of the new legislation – of particular concern to the leisure and hospitality sector, whose employees come into contact with members of the public constantly, as well as to free speech commentators who query if it ought to be an employer’s duty to police the speech of its customers.

What’s most important to highlight is that there is no specific claim for third party harassment in the new (or, for that matter, existing) legislation – in order to succeed in a claim of sexual harassment under s. 26(4) EqA 2010, the alleged perpetrator must be an employee or agent of the employer. There are, however, other possible claims which could be brought in circumstances where an employee has been sexually harassed by a third party – including potential claims of direct or indirect sex discrimination, breach of contract (for example of the implied term of trust and confidence) and constructive unfair dismissal.

Despite there being no specific claim for sexual harassment against third parties, the EHRC Guidance explicitly confirms sexual harassment of a worker can be committed by a third party (as well as by another worker or agent), and so the new s. 40A EqA 2010 requires employers to take reasonable steps to prevent sexual harassment of workers by third parties such as clients, customers, patients, service users, delegates at a conference, and other members of the public they may come into contact with.

Whilst it is clear, therefore, that the new preventative duty does apply in respect of sexual harassment by third parties, there can be no 25% uplift to an award in these circumstances – because the uplift is dependent on a successful sexual harassment claim (which is not possible in respect of third party harassment). Putting in place the required preventative measures in respect of third parties will, in any event, likely assist an employer responding in defending any other types of third-party harassment claims in these circumstances. The EHRC’s enforcement and investigatory powers also apply in respect of third party harassment.

CONSEQUENCES – ENFORCEMENT & UPLIFT:

The EHRC has investigatory and enforcement powers under the (lesser-known) Equality Act 2006:

  • s. 20: to investigate an employer;
  • s. 21/22: to issue unlawful act notice, if the employer is or has been the subject of an investigation under s. 20, confirming the EHRC has found the employer has breached the preventative duty, and requiring it to prepare an action plan setting out how it will remedy any continuing breach of the law, and prevent future breaches;
  • s. 23: to enter into agreement to prevent future unlawful acts; and
  • s. 24: to apply for injunction to restrain employer from committing an unlawful act.

Enforcement by the EHRC doesn’t depend on an incident of sexual harassment having taken place – just suspicion that the preventative duty has not been complied with.

ETs can also increase compensation by up to 25% if they find (i) a successful claim of sexual harassment; and (ii) that an employer breached the preventative duty.

As compensation for sexual harassment is potentially without limit (to include past and future loss of earnings and other financial losses consequential upon the sexual harassment, plus injury to feelings, general and special damages for personal injury, etc.) the 25% uplift could be very substantial. An increase is not automatic, and the percentage amount will depend on and reflect the ET’s findings as to the severity and extent of the non-compliance with the preventative duty.

Next week, Fergus McCombie will go into detail on the practical steps employers can and should be putting into place to ensure they are complying with the new duty to prevent sexual harassment.

Louisa specialises in Employment Law. For more information or to instruct Louisa, please contact clerks James Wackett or Dean Cunniff on 020 7353 0711 or via email: clerks@pumpcourtchambers.com

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