Sexual harassment occurs when a person engages in unwanted conduct of a sexual nature that has the purpose or effect of:
- Violating someone’s dignity; or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Sexual harassment is unlawful under the Equality Act 2010 and ACAS gives the following examples of sexual harassment which can be a “one-off incident or an ongoing pattern of behaviour”:
- flirting, gesturing or making sexual remarks about someone’s body, clothing or appearance;
- asking questions about someone’s sex life;
- telling sexually offensive jokes;
- making sexual comments or jokes about someone’s sexual orientation or gender reassignment;
- displaying or sharing pornographic or sexual images, or other sexual content;
- touching someone against their will, for example hugging them; and
- sexual assault or rape.
The Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act) is due to come into force on 26 October 2024. The Equality and Human Rights Commission published its consultation guidance on 9 July 2024. The headline being that it comes with a new positive legal obligation for employers to take “reasonable steps” to protect their workers from sexual harassment “in the course of employment”.
Coupled with the above positive legal obligation will be the power for an employment tribunal to increase compensation by up to 25% (“compensation uplift”) in the same way as an employment tribunal could award an ACAS uplift of 25% for failure to follow the ACAS Code of Practice on disciplinary and grievance procedures.
The failure to take “reasonable steps” duty does not give rise to a free-standing claim but it will be pertinent to the assessment of compensation by an employment tribunal if the employer is found to have breached this duty under the Act.
So what are “reasonable steps” to preventing sexual harassment in the workplace?
The initial drafting of the legislation included a duty on employers to take “all reasonable steps” to prevent sexual harassment in the workplace. The wording of the Act has been diluted somewhat with the employer’s duty being one of taking “reasonable steps” to prevent sexual harassment in the workplace.
“Reasonable steps” is not defined within the Act however employers will need to ensure that:
- appropriate training is in place and refreshed regularly;
- anti-harassment polices are also updated regularly, shared with employees and enforced by the employer; and
- robust procedures are in place to allow for incidents of sexual harassment to be reported.
Under the Act, the Equality and Human Rights Commission (EHRC) states that “different employers may prevent sexual harassment in different ways, but no employer is exempt from the sexual harassment preventative duty”. Accordingly the larger the employer the greater the number of steps they will need to take to adhere to their duty. The smaller employer will still need to take steps that are reasonable for the to ensure compliance with their active duty.
You should always ensure that you speak specialist employment advice in respect of the information set out above. At Consilia Legal we have an expert team of employment law solicitors who have a wealth of experience in cases of sexual harassment. For a free, no obligation discussion, please contact us.