The #MeToo movement which has swept the globe in recent years has helped to encourage millions of people to share their experiences of sexual harassment in the workplace, and saw governments around the world clamour to address the issue.
Here in the UK, a quarter (26%) of those polled in a survey by the Office of National Statistics (ONS) in 2023, said that they had experienced sexual harassment at their place of work.
Indeed, the issue has continued to be brought into sharp focus, as hundreds of women come forward to lodge complaints of sexual harassment against the former Harrod's owner, Mohamed Al Fayed.
Fiona Dunger, a consultant solicitor in the employment team at Jurit LLP, explores the journey towards implementation of sexual harassment protections for employees in the workplace, and discusses what employers should do now, to ensure they are compliant with the latest legislative changes.
Following reports from the Equality and Human Rights Commission (EHRC) and the Women and Equalities Select Committee (WESC), the previous UK Government committed to impose duties on employers to prevent sexual harassment in the workplace.
After a consultation in 2019, the Government Equalities Office published its response in 2021, and this led to the Worker Protection (Amendment of Equality Act 2010) Act 2023 (WPA 2023).
It has just come into force (26 October) and places a new duty on employers to prevent sexual harassment in the workplace, which goes beyond that which was already included in the Equality Act 2010.
What sexual harassment protections existed previously?
Under the Equality Act, sexual harassment is prohibited, as well as less favourable treatment of employees who have rejected or submitted to conduct of a sexual nature.
Unless employers can show they took all reasonable steps to prevent an employee from acting unlawfully, they can be vicariously liable for acts of sexual harassment carried out by their employees during the course of their employment.
Despite these existing protections, the #MeToo movement uncovered that sexual harassment in the workplace remained prevalent.
What did reports into workplace sexual harassment reveal?
The EHRC report concluded that despite the existing protections many victims remain silent due to barriers to reporting, fear of victimisation and a belief that the perpetrators will be protected.
They made a series of recommendations for change, including a mandatory duty on employers to take reasonable steps to protect workers from sexual harassment in the workplace, and a statutory code of practice setting out best practice for employers to take to prevent harassment.
The WESC report concurred, and went further by recommending that employers should be under a duty to protect employees from third-party sexual harassment.
Does the WPA 2023 go far enough?
The Government's 2021 response to its consultation included a commitment to introduce a duty on employers to "take all reasonable steps to prevent sexual harassment," and included protections for employees from third-party harassment.
However, the WPA 2023 does not contain any protections against third-party harassment. Not only this, it introduces a duty to "take reasonable steps" – the word "all" having been removed.
Whilst less onerous than originally envisaged, the new duty remains significant for employers.
What impact will WPA 2023 have on employers?
Whilst a breach does not give employees a stand-alone claim, where a claim for sexual harassment is upheld at the Employment Tribunal, and the employer is found to have breached their preventative duty, companies could be ordered to pay 25% uplift to the compensatory award.
How can employers prepare for the new duty?
Whilst there is no definition of what constitutes "reasonable steps" that employers must take under the WPA 2023 yet, the EHRC has updated its technical guidance, recommending that employers should do the following:
- Review and update harassment policies.
These should clearly define what constitutes sexual harassment and make clear that whether the perpetrator's acts violate an employee's dignity, or create an offensive environment, depends on the victim's perspective.
- Ensure reporting procedures are clear.
Employers should clearly communicate the procedures for reporting sexual harassment in the workplace to all employees, and must ensure that all complaints are properly investigated, with action taken if upheld.
- Update training for employees.
Employers need to ensure that their training is updated to make employees aware of what constitutes harassment, what to do if they experience or witness it, and how to report it.
- Carry out risk assessments
Employers should carry out risk assessments to identify potential areas of greatest risk, and identify and take steps to minimise this risk.
What about third-party harassment?
Before the Election, the new Government had identified sexual harassment as a key area for reform in its "New Deal for Working People."
Whilst third-party harassment was considered as part of WPA 2023, it was ultimately left out.
However, this could be just the starting point of changes to the law in this area, particularly as a recent TUC poll found that 39% of reported incidents of sexual harassment in the workplace were by third parties.
With the potential for legislation on this to follow, employers can proactively consider steps to protect their employees from third-party harassment.
This might include things such as having visible signs in public areas stating that threats, violence and harassment will not be tolerated; and publicising reporting channels for victims or by-standers who witness harassment, to encourage reporting of these.
For help and support with your obligations under the Worker Protection (Amendment of Equality Act 2010) Act 2023 (WPA 2023), Jurit's employment lawyers can help. Get in touch for more information.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
