Every day the news is littered with reports of sexual harassment. All too often the supposed defence of the perpetrator is that the offending behaviour was a joke, or ‘banter’. Since 26 October 2024 employers have been under an active duty to take reasonable steps to prevent the sexual harassment of their workers. This is in addition to the pre-existing Equality Act 2010 protections from harassment, victimisation and discrimination.
What is sexual harassment for these purposes?
There are two aspects – that the conduct in question is unwanted, and that it is of a sexual nature. The conduct doesn’t need to be sexually motivated, only sexual in nature, and it can be a one-off event or a course of conduct. Examples of such conduct given by the Equality and Human Rights Commission (EHRC) Guidance list a wide range of behaviours, including:
- Sexual comments or jokes
- Sexual gestures
- A person discussing their own sex life
- Unwelcome touching, hugging or kissing
- Intrusive questions about a person’s private or sex life
- Suggestive looks, staring or leering
- Propositions and sexual advances
- Making promises in return for sexual favours
- Sexual posts or contact on social media
- Spreading sexual rumours about a person
- Sending sexually explicit emails or text messages
An individual can experience unwanted conduct from someone of the same or a different sex. Other characteristics of the victim / perpetrator are also irrelevant to determining whether there has been sexual harassment, though harassment relating to, for example, age or race might constitute harassment related to a protected characteristic under the 2010 Act.
A worker does not have to say that they object to the behaviour for it to be unwanted conduct, though the tribunal or court can take external factors into account in deciding whether or not it accepts that, from the subjective point of view of the worker, the conduct was unwanted. The new duty applies both in the workplace and at work-related events.
What is the new duty on employers?
The preventative duty is the new part. There were existing duties on employers under the Equality Act 2010 before the recent amendment came into effect, and employers are still vicariously liable for sexual harassment committed by an employee in the course of their employment, unless it can show that it took reasonable steps to prevent its worker from committing a particular discriminatory act.
The new duty goes further, being an active, anticipatory and preventative duty – employers can’t wait until there is an allegation to take action.
A failure to take preventative steps does not amount to a stand-alone claim in the Employment Tribunal, so not having the right risk assessments and policies in place is not the foundation of a claim on its own, but if a claim of sexual harassment against an employer is successful there may be an uplift in the compensation awarded of up to 25% if the employer has failed to comply with the preventative duty.
The EHRC has powers to investigate and enforce, which can be used whether or not any sexual harassment has taken place.
Harassment by Third Parties
EHRC guidance has confirmed that the sexual harassment of a worker can be committed by a third party and so employers must take reasonable steps to prevent the sexual harassment of workers by third parties such as clients, customers, suppliers, and other members of the public they may come into contact with.
What can employers do?
The new duty requires action by employers – it is not just a question of writing a new policy or amending an old one – it goes to the culture of the workplace.
Employers are expected to conduct thorough risk assessments, take action to stop sexual harassment if it has already occurred, regularly review, monitor and evaluate the effectiveness of their policies, reporting and investigatory processes, as well as properly training and engaging their staff.
This update is for general purpose and guidance only and does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered. No part of this update may be used, reproduced, stored or transmitted in any form, or by any means without the prior permission of Brecher LLP.
