Paul Johnstone is a Partner at specialist employment law firm, Collingwood Legal. Paul considers the new duty to prevent sexual harassment in the workplace and what employers can do to prepare for its implementation.
Legislation has existed for many years to protect employees in the workplace from sexual harassment. This includes personal liability for workers who commit acts of sexual harassment, and vicarious liability for employers for the acts of their employees.
However, these protections have not stopped harassment at work from being an issue, as evidenced in a recent report by Unison of 12,200 NHS workers which found that 10% of respondents reported unwanted incidents at work.
New legislation was passed last year to introduce a new duty on employers to prevent sexual harassment. From October 2024, a worker bringing a sexual harassment claim can also bring a claim that their employer failed to take reasonable steps to prevent sexual harassment in the workplace. If successful, an Employment Tribunal can order compensation be increased by up to 25%.
This new duty may appear similar to the existing “reasonable steps” defence an employer can plead in order to avoid vicarious liability for the discriminatory acts of their employees. This allows an employer to argue it took reasonable steps to prevent the employee from doing the act complained of. However, the “reasonable steps” defence assesses steps an employer takes to prevent sexual harassment with reference to the conduct of the individual accused of harassment, whereas the new duty’s focus is on preventing sexual harassment within the organisation generally.
When employers plead the “reasonable steps” defence, this has usually involved providing evidence of the training received by an individual perpetrator and the policies and procedures provided to them. With the introduction of the new duty, the question will likely be raised as to whether the employer’s training, policies and procedures are sufficient to deal with sexual harassment in the workplace with reference to the employer’s operations and its size and resources. Moreover, as the new duty is not restricted to the steps taken in respect of an alleged perpetrator, employers should be mindful of the risks of sexual harassment from third parties such as clients and customers.
Employers in all sectors and of all sizes need to prepare for the introduction of the new duty and the steps they need to take to maximise the chances of being protected from enhanced liability under the new duty.
One practical method for an employer to demonstrate a proactive approach may be to introduce a form of sexual harassment “risk assessment” of operational practices (akin to a health and safety style risk assessment). This could be achieved by identifying areas of potential risk such as:
1. having to deal with individuals where there is an imbalance of power (e.g. managerial relationships where some core personnel have control over a person’s career progression);
2. raising awareness of scenarios where individuals may work in an intimate work location or at a time of day or night where there are not many people around;
3. where some employees may be exposed to social or business-related events where alcohol could be freely available.
The above list gives a few examples of issues which may be relevant for a particular employer to consider when assessing the risk of employees being exposed to sexual harassment. The kinds of situations where sexual harassment might occur could differ widely depending on the nature of an employer’s operation and each organisation will need to consider the specific areas of risk applicable to them.
Collingwood Legal is a specialist employment law firm with extensive experience of dealing with harassment and diversity issues. We can provide bespoke training and advice to organisations in preparing for the implementation of this new piece of legislation, including a review of an employer’s policies and procedures.
If you require this specialist advice, please contact 0191 282 2880 or visit www.collingwoodlegal.com
