A new duty on employers to take reasonable steps to prevent the sexual harassment of their employees takes effect on 26 October 2024.
The Current Rules
While an employer can be vicariously liable for harassment committed by its employees in the course of their employment, it has a defence against a harassment claim if it can show that it has taken all reasonable steps to prevent the harassment. This is a high bar.
The New Rules
The new duty departs from the current legal position by introducing a mandatory and positive obligation for employers to take reasonable steps to prevent sexual harassment.
While a failure to comply with the new duty does not give rise to a stand-alone claim, if an employee brings a successful claim in the Employment Tribunal, the Tribunal can exercise its discretion to uplift the compensation due to the claimant by up to 25% if it finds that the employer has failed in this duty to take reasonable steps to prevent the sexual harassment of that employee.
In addition, there are reputational risks if an employer is found to breach the new duty and, should the Equality and Human Rights Commission (EHRC) have concerns regarding an employer’s compliance, it has the power to:
- investigate the employer,
- issue an unlawful act notice requiring the employer to prepare an action plan,
- require the employer to enter into a binding agreement to take steps to remedy the issue, or
- request an injunction.
What is “reasonable” is an objective test, but factors that the Tribunal may take into account are the:
- size of the employer,
- nature of the workplace,
- risks present in that workplace,
- types of third parties the employees may have contact with, and
- likelihood of workers coming into contact with such third parties.
Practical Steps
There are a number of practical steps employers can take to ensure that they are well positioned to comply with the new duty, including:
- Providing training to employees on unlawful sexual harassment. This includes ensuring that employees understand what sexual harassment is, how it can be addressed in the workplace, and what the appropriate channels are for reporting and dealing with sexual harassment complaints.
- Conducting a risk assessment to identify vulnerabilities within the organisation that might give rise to sexual harassment. It is important to ensure that the employer’s approach to dealing with sexual harassment is tailored to its organisation and working practices. This includes understanding and identifying the situations in which there is an increased risk of employees being exposed to unlawful sexual harassment.
- Introducing or updating the employer’s policy on sexual harassment. This would include examples of unlawful conduct, guidance for employees and managers on how to address issues in practice and details on the organisation’s reporting mechanism.
- Ensuring that there are clear reporting channels and that there is a support system in place for any potential complainants. The organisation should post signs of its reporting mechanisms where employees can see them.
For further information, please contact:
Helena J. Derbyshire, Partner, Skadden
helena.derbyshire@skadden.com
