Proactive Protection: Navigating the new duty to prevent sexual harassment
Robin Turnbull, Anderson Strathern
Thank you, Wendy. Good evening everyone. Amid all the news on the budget and the employment rights bill, fantastic for employment lawyers. Some of you might have missed a significant new legal duty for employers introduced just last month. This session will cover what the duty is, the consequences of failure, and finally how to comply.
So what’s the new duty? Every employer now has an explicit legal duty to actively prevent sexual harassment in the workplace. Why introduce this? Well, it’s to protect employees and to address the quite shocking survey statistics, such as 29% of UK staff had experienced some form of sexual harassment in the workplace and yet only 15% reported it.
So what are the consequences of failing in this duty? Mainly hefty financial penalties. But the Equality and Human Rights Commission also have the power to intervene. Here’s what liability looks like now, if there’s been sexual harassment in the workplace. If you did nothing to prevent harassment, you’re liable, and any compensation can be increased by up to 25%. So if there’s compensation for 100,000 then you could be on the hook for 125,000. If you took some reasonable steps to prevent the harassment, you’re still liable, but no uplift will be applied to the compensation. It’s just that 100,000 pounds. If you took all reasonable steps to prevent the harassment, then you’re off the hook completely. There wouldn’t be any compensation and you’re not liable.
So take McDonald’s for example, which faced a lawsuit into the millions for sexual harassment, and with compensation in theory being unlimited for such claims, a 25% uplift could be massive for employers. This duty also extends to sexual harassment by third parties. And that’s completely new. So if the harassment is by a client or a customer of yours, then you could be on the hook for the 25% uplift if you fail to take reasonable steps to prevent that harassment.
To quickly bust three myths for you, because there’s been lots of information out there, it keeps changing, and there’s more proposed in legislation. Firstly, the current duty only applies to conduct of a sexual nature. So it’s just sexual harassment we’re talking about and not other of harassment based on protective characteristics. Secondly, the duty doesn’t require you to take all reasonable steps. It’s just reasonable steps. So it’s not a test of perfection. Thirdly, the duty doesn’t give an employee a free-standing right to claim. So there needs to have been a successful claim for sexual harassment in the first place.
So how do you adhere to this duty? How do you comply? Well, you could have a whole seminar on this in itself, and the commission issued its updated guidance along with eight steps, which I would suggest you read, and you’ll see hopefully in a second these on the slides.
But what is reasonable? It’s the million pound question. Really depends on the type of employer you are and the risks present in the particular circumstances, a really lawyerly answer. But I’ll attempt the impossible and distill it into three overall steps for you to make it a bit easier. So first, conduct risk assessments and staff surveys which has a focus on sexual harassment. Second, provide meaningful and up-to-date training to all of your staff. And third, implement and enforce a strong reporting system through your policies and contracts, which includes this new third-party element. And remember, all of these steps need to have been taken before any harassment takes place.
Looking to the future, be aware that the UK government has proposed a strengthening of this duty and instead of reasonable steps, it will be all reasonable steps to prevent sexual harassment. And more significantly, there would be direct employer liability so a claim could be brought for third-party harassment, and that would apply to all forms of harassment. So it makes it even more important to take proactive preventative measures now. To bring this to a close, if there’s one thing that you remembered from what I’ve said, it’s tweak your training, risk assessments, and policies to comply.
