Sexual Harassment at Work: New Duties on Employers

Back in 2019, the Government consulted on whether there should be a duty on employers to prevent the sexual harassment of their employees, and this was met with support.

In July 2021, the Government responded to the results of that consultation by announcing that it would create employment laws to introduce such a duty “as soon as parliamentary time allowed”.

It seems that that time is now as a result of a private member’s bill – the Worker Protection (Amendment of Equality Act 2010) Bill - which is currently being supported by the Government and, if enacted as drafted, would significantly increase employers’ responsibilities concerning harassment.

This article outlines the key changes in that Bill and what employers can do to prepare for them.

Complaints of sexual harassment can lead to costly settlements, high-profile departures of senior management, expensive litigation, loss of productivity, damage to reputation, an adverse effect on employee and customer relations and even steep declines in share prices.

Taking appropriate steps to prevent sexual harassment in the workplace is therefore important for all employees, from a business perspective and a legal one.

The Bill will require employers to take all reasonable steps to prevent sexual harassment of employees during their employment.

If an employer fails to comply with this duty, it is said that they could face enforcement action from the Equality and Human Rights Commission (EHRC). It’s not entirely clear what such action will be, but it’s expected this could include investigations or litigation.

In addition, where an employee successfully brings a sexual harassment claim, and a Tribunal finds that the employer has breached its duty, it may order that the compensation payable by the employer is increased by up to 25%.

The Bill is currently at the committee stage in the House of Lords. Assuming the Bill is passed, it would become law a year after it receives Royal Assent. Assuming the Bill is passed, it would become law a year after it receives Royal Assent.

It is expected that a statutory code of practice will be produced by the EHRC, which will provide important guidance for employers.

In the meantime, employers who wish to prepare for the changes should consider the following:

• Check your policies – do you have appropriate anti-harassment policies in place that are clear and understandable? Do you keep these under regular review? Do you make staff aware of the policies and that they are followed?
• Check your culture – do you have a workplace culture of zero tolerance to harassment, and are employees encouraged to report inappropriate behaviour?
• Check your contractual terms and how you work with third parties – do the terms, and your working relationships make clear your expectations of behaviour, and what happens if these are breached?
• Provide regular training – it’s not enough to simply say you have the training to rely on a reasonable steps defence. Is the training thorough? Is there specific training targeted to managers in dealing with complaints of harassment? Is it delivered regularly and refreshed if particular issues arise?
• Monitor – do you have nominated employees to monitor harassment issues and support victims of harassment? Do you have a process for settlement agreements in sexual harassment claims to be signed off or reviewed at board level?