Sexual harassment – the preventive duty | BCLP

SUMMARY

After a slightly extended summer break, we return with a summary of the new sexual harassment rules that will come into effect in just over two weeks.

Background

The Protection of Workers (Amendment to the Equality Act 2010) Act 2023 was introduced last year. Despite its general title, the Act deals exclusively with sexual harassment, specifically introducing a positive duty on employers to take reasonable steps to prevent sexual harassment in the workplace. In August 2023, the law underwent a number of changes at the House of Lords stage: where liability for third party harassment was apparently abolished and “all reasonable steps” to prevent harassment were replaced by “reasonable steps”.S”.

However, any thoughts that the preventive law could be weakened were dispelled by the first technical guidelines published on July 9. This was the first real introduction to duty in practice and it became clear that:

• The bar for compliance was high;
• The preventive duty included intimidation by third parties;
• There was a maximum increase of 25% for breach of duty based solely on non-compliance; And
• The EHRC could independently take action against employers.

The final technical guidance was published on September 26, together with an 8-step guide. These only emphasized the above points and added new points and two new case studies.

As an aside, it appears that Labour’s apparent intention to change the legislation and specifically reintroduce the requirement to take “all” reasonable steps is not being implemented, certainly not yet.

The preventive duty

There is a duty to prevent sexual harassment, but what makes the preventive duty different? The biggest difference is its anticipatory, positive nature, with an emphasis on risk assessment and prevention. The duty is not so much a defense to a sexual harassment claim as it is something that should have prevented a claim in the first place. To quote the technical guidelines it is “designed to transform workplace culture by requiring employers to take positive and proactive reasonable steps to prevent sexual harassment of their employees”.

Manual in 8 steps

The 8-step guide may be the best starting point. This is a brief, non-legal summary of the minimum steps all employers must take to comply with the duty. They are:

• Step 1: Develop effective anti-harassment policies and procedures;
• Step 2: Involve staff in the policy/procedures (and duty) through 1-1 meetings, training, staff surveys and exit interviews – ensure staff are familiar with any complaints procedures
• Step 3: Conduct a risk assessment and take all necessary steps resulting from this. Under the ECHR, an employer is unlikely to comply with the duty without first carrying out a full risk assessment;
• Step 4: Set up a reporting system – this can be online, telephone or otherwise. All steps must be taken to respect confidentiality and, if requested/required, anonymity;
• Step 5: Train staff – all staff, including managers and senior staff, should be trained, including on what sexual harassment looks like, what to do if it happens and how to make/handle complaints;
• Step 6: Handle complaints – including confidentiality, anonymity and, if necessary, removing the alleged harasser;
• Step 7: Fully deal with third-party harassment and treat it the same as other harassment; And
• Step 8: Monitor and evaluate actions – this includes assessing effectiveness, staff surveys and assessing complaints

The 8-step guide provides employers with the minimum steps for compliance, highlighting the overarching importance of effective policies and procedures and ensuring they are communicated and followed to staff.

Technical guidance

Looking at the technical guidance, it builds on and complements the 8-step guide and includes five case studies, two of which really highlight the issue of third-party harassment.

It not only adds details, but also raises specific points:

• As already mentioned, failure to comply with the preventive duty can lead to an increase in the tribunal’s awards by up to 25%. The increase can only be applied if there is a successful sexual harassment claim under the EqA, which ironically is a claim that cannot currently be brought against third parties. Nevertheless, when assessing the percentage increase, a court only takes into account the employer’s compliance/non-compliance with the preventive duty. do including harassment by third parties. The preventive duty is therefore broader than the employer’s liability under the EqA, because it also includes harassment by third parties. This is an extra incentive to comply. This apparent inconsistency could be resolved if Labor reinstates third party liability under the EqA, but this does not appear to be happening anytime soon;
• Although failure to comply with the preventive duty is not a standalone claim (it can only be part of an EqA sexual harassment claim), failure in itself can be directly enforced by the ECHR. Although enforcement of the ECHR is rare and often targets very large employers, such as the equal pay investigation at the BBC, it can cause reputational damage, and there is no way to mitigate that damage through, for example, an NDA. It’s public. Enforcement may include the ECHR:
  • investigation into the employer;
  • issuing an unlawful act if the employer is or has been the subject of an EHRC investigation. The ECHR may require an action plan to remedy the breach and prevent future breaches;
  • The EHRC can enter into a formal, legally binding agreement with the employer to prevent future unlawful acts, including breaches of the preventive duty.
  • Applying for an injunction to prevent the employer from committing unlawful act(s).

• If the employer is regulated, the employer should consider whether the sexual harassment in question should be reported to the regulator, including for example the FCA or GMC. The ‘hospital’ case study in the technical manual is specific about this; And
• When a complaint is made, immediate steps must be taken to protect the complainant and any other staff from the alleged perpetrator. This could include suspending the alleged harasser or banning him from certain types of work. The employer will have to have the right to do this, which may not always be the case.

The case studies are very good and describe compliance with the duty in daily practice. They are definitely worth checking out.

Summary

The duty comes into effect in just over two weeks and the supporting documents mentioned above (the 8-step guide and technical guidance) provide guidance and assistance in complying with the duty. Below you will find links to both documents.

The key compliance issues have already been set out, but some of the language used in the documents, such as ‘transformative’ and ‘anticipatory’, indicates that the EHRC may have high expectations.

A final list we have compiled is a general list of compliance points taken from the documents.

Reasonable steps always include:

• A risk assessment, including an analysis of what steps are required;
• Updating policies/procedures to clarify the law and outline expected behavior. and establish complaint mechanisms;
• Conducting staff training to increase awareness of rights, policies and procedures;
• Providing specific training for managers who deal with complaints;
• Having a process for assessing the effectiveness of policies/training;
• Ensure that all complaints are followed up and maintain records of complaints, both formal and informal;
• Carrying out surveys among staff, possibly anonymously, to test the water and compare it with complaints actually submitted;
• Having a timetable for further training;
• Encouraging staff, both victims and witnesses, to make a complaint including reporting it to the police (if appropriate);
• Taking into account full consideration of third party harassment and risks, including types of third parties, and the likelihood of staff contact with third parties. This includes clients, customers, contractors and even members of the general public;
• Informing and warning third parties about the employer’s policies/procedures; And
• Informing supervisors, if applicable and appropriate.

This is not an exhaustive or competitive list, but highlights key points. It is almost certain that after October 26, the preventive duty will become part of sexual harassment claims, employer practices and possible ECHR measures.

Further resources

ECHR: 8-step guide for employers: preventing sexual harassment at work

ECHR: Sexual harassment and intimidation at work: technical guidance

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