Legislation update: New duty on employers to take reasonable steps to prevent harassment
Whilst employers may have a defence to a claim for harassment if they have taken “all reasonable steps” to prevent that harassment from occurring, a new positive duty will be coming into force in October 2024 which requires employers to take "reasonable steps" to prevent sexual harassment.
Background
Relevant new legislation: Worker Protection (Amendment of Equality Act 2010) Act 2023
We previously reported in our May 2023 edition that the UK Government was proposing to reintroduce liability for employers for failing to prevent third party harassment of workers (e.g. by customers, clients or suppliers). See our update here.
After significant opposition to these proposals in the House of Lords during summer 2023, the proposals relating to third party harassment were dropped.
However, what has now been passed into law (and will be in force on 26 October 2024) is a positive duty on employers to take reasonable steps to prevent sexual harassment of their employees. This has been 'watered down' from the need to take 'all reasonable steps' to prevent sexual harassment.
What's changed?
Current position
Under the Equality Act 2010, if an employer is faced with a claim of harassment by one employee in relation to the actions of another employee, it is a defence for the employer to show that it took "all reasonable steps to prevent" the offending employee from harassing the other (s. 109(4)).
All reasonable steps is a reasonably high bar to prove, as reinforced by a 2021 Employment Appeal Tribunal case (Allay (UK) v Gehlen) which we summarised here. In short, training on equality and diversity given to staff several years before the acts of harassment was not enough to show "all reasonable steps" had been taken.
New legislation
The existing defence under s. 109(4) on the left remains unchanged.
What this new legislation does, however, is put a positive obligation on the employer to take reasonable steps to prevent sexual harassment.
Once in force in October 2024, employers will need to take active steps to comply with this new requirement. However, this new requirement is not as high a bar as the existing defence in s. 109(4), which:
- relates to all harassment (not just sexual harassment); and
- requires "all" reasonable steps to be taken, not merely "reasonable steps".
What is the sanction for breach of this new obligation?
Enforcement action
The existing range of enforcement powers of the Commission for Equality and Human Rights shall be applicable to breaches of the new positive duty to take reasonable steps to prevent sexual harassment (under Part 1 of the Equality Act 2006).
This may include investigations, a notice requiring the employer to take remedial action or action plans more generally.
The Commission for Equality and Human Rights will also be publishing a new statutory code on sexual harassment.
Compensation uplift by an Employment Tribunal
Where an employer has breached the new duty and an Employment Tribunal claim has been pursued against the employer, the Employment Tribunal may award an increase in compensation of up to 25%.
Guidance for employers
Given the lack of practical guidance in the legislation, the recommendations in the Equality & Human Rights Commission (EHRC) guidance on harassment at work (summarised in our note) as well as our summary of the Employment Tribunal Allay v Gehlen case should be considered.
In summary, employers should:
- Check/update policies: Have clear and effective policies and procedures which are accessible and communicated regularly to workers, using a variety of channels.
- Implement strategies for detecting early warning signs, such as informal one-to-ones, return-to-work meetings after sickness absence, and employee surveys.
- Run regular training to workers on the types of harassment and victimisation: with refresher training annually for those who have already received the full training.
Northridge regularly supports clients in delivering training on these topics. If you would like to know more, email Jamie Feldman.
