Legal update – sexual harassment in the workplace 

In our previous blog post, which can be found here, we discussed the upcoming legislative changes aiming to prevent sexual harassment within the workplace.

The new mandatory duty to take reasonable steps to prevent sexual harassment found in the Worker Protection (Amendment of Equality Act 2010) Act 2023 is set to come into force on 26th October 2024. With this date fast approaching, employers need to understand what this at work means to ensure compliance with the new legislation.

The Equality Act 2010 is an existing piece of legislation which provides protection to employees from harassment in a work environment. Within this Act, there are four distinct types of harassment:

i) A ‘general’ definition of Harassment that could apply to many of the protected characteristics under the Equality Act (not only sex); 

ii)  Harassment related to sex;

iii)  Sexual harassment;

iv) Less favourable treatment because an employee rejects or submits to harassment.

While some of these may appear similar, employers need to understand that they are distinctly different. Understanding the key differences is vital to fostering a safer work environment.

Sexual harassment refers to unwanted conduct of a sexual nature. Examples include, but are not limited to:

1. unwelcome sexual propositions or advances;
2. physical acts such as touching or groping; 
3. sexual comments or jokes; and
4. displaying sexually explicit materials. 

This is a very topical area of concern for both employees and employers as the effect of sexual harassment within a work setting can lead to a decrease in job satisfaction, productivity and in some cases, resignation. 

On the other hand, harassment related to sex involves unwanted conduct related to a person’s sex which is recognised as a protected characteristic. Unlike sexual harassment, it is a form of harassment which does not need to have a sexual element, but it is related to the person’s sex. This applies whether they are male or female. Examples include, but are not limited to:

1. demeaning or derogatory comments about someone’s gender;
2. unfair treatment because of someone’s gender;
3. jokes based on gender or stereotypes; and
4. excluding someone from work opportunities because of someone’s gender.

To summarise, the key difference between the two issues is evident from the nature of the conduct. Sex-related harassment focuses on unwanted conduct related to gender, whilst sexual harassment involves behaviour of a sexual nature. However, to constitute harassment, the conduct relating to either sexual harassment or sex-related harassment must have the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Both forms of harassment are among those prohibited under the Equality Act 2010. 

The new duty coming into force later this year focuses on sexual harassment only. It will require employers to take ‘reasonable steps’ to prevent sexual harassment of their employees in the course of their employment. There is a lack of clarity within The Worker Protection (Amendment of Equality Act 2010) Act 2023 regarding the meaning of ‘reasonable steps’. However, on 9^th  July 2024, the Equality and Human Rights Commission (“EHRC”) published an updated guide to assist employers with compliance of the new preventative duty. The guidance is currently undergoing consultation until 6^th August 2024. 

To summarise, the guidance states that employers should:

• consider the risks of sexual harassment occurring in the course of employment
• consider what steps it could take to reduce those risks and prevent sexual harassment of their workers
• consider which of those steps it would be reasonable for it to take
• implement those reasonable steps

The EHRC acknowledges that reasonableness will vary from employer to employer, taking into consideration the employer’s industry, size, working environment and resources but regardless, the preventive duty applies to all employers.  

Employers also need to be aware that the new guidance published by the EHRC extends the new duty of employers to prevent sexual harassment by third parties. Even if sexual harassment of workers is committed by a third party (e.g. clients and customers), an employer may find itself in breach if it did not take reasonable preventative steps. 

The EHRC also publishes details on the enforcement of the new preventative duty. This includes:

1. EHRC taking enforcement action against the employer; and
2. an uplift of 25% for any amount of compensation awarded to a worker for the sexual harassment.  

Employers should carefully note that enforcement powers can be used even if the EHRC suspects that the preventative duty has not been complied with. The broad scope of the EHRC’s powers includes:

1. the ability to investigate an employer;
2. issue an unlawful act notice;
3. enter into formal legally binding agreements with employer; and
4. asking courts for an injunction to restrain an employer from committing an unlawful act.  

Based on the guidelines, employers need to carefully consider and carry out a risk assessment and review of the systems and policies currently in place. Failure to take these steps to prevent sexual harassment could potentially lead to action by the EHRC, despite a sexual harassment incident not yet taking place. 

As the new legislation rolls out, the Hibberts Employment Law Team in Crewe are here to help employers across Cheshire, Shropshire and beyond prepare for this shift in law to ensure compliance. Hibberts can assist employers navigate their way through this upcoming legislation and take steps to minimise risks to their staff and their business.  In addition to the implications of this new sexual harassment legislation, our specialist employment solicitors regularly advise upon all areas of employment law, for example, settlement agreements, grievances, redundancy and discrimination. You can contact the team [here] for support.