Employers Duty to Prevent

Employers now “must” take steps to prevent sexual harassment. This means the onus is now on the employer to ensure at all times that they are taking steps to prevent sexual harassment..

However, amendments to the Bill have arguably watered down the duty on employers to prevent sexual harassment as initially proposed.  The Bill sought to reintroduce “all reasonable steps”, something that previously existed under the Equality Act, but was repealed in 2013.  The new Act will continue to require That employers need only to take “reasonable steps”. This aims to reduce the number of steps an employer has to take as it was seen as too onerous. There is no guidance on what is “reasonable”, however it will be likely that Employment Tribunals will interpret this in a similar way to before.

Liability of Employer for Third Parties Actions

Originally, it was proposed the reform would enhance the third-party protections for employers to protect their staff from sexual harassment at the hands of third parties. However, the provisions have been entirely removed. Employers continue to not have liability for third party harassment of employees.

This removal aims to reduce costs for businesses, help facilitate free speech and reduce excessive state intervention in business. Arguably, whilst assisting employers, it fails to protect employees working in environments where there is a higher risk of sexual harassment from a third party, as the onus has been removed from the employer. However, it would be considered bad practice and reputationally damaging to not prevent employees from being sexually harassed at work. Employers should try to manage the risks and prevent their employees enduring this, as it could lead to liability for discrimination or harassment if they ignore complaints and put vulnerable employees at risk.

Claims for Breach of Duty

If an employee wants to claim for breach of duty under this law before the Employment Tribunal, then it must be alongside a claim for sexual harassment. The breach of duty cannot exist without the sexual harassment claim.

The new law has increased the power of Employment Tribunals to award compensation by up to 25% if an employer has been found to be in breach of their duty and the employee has succeeded in claim for sexual harassment.

What Should Employers be Doing Now?

It would be wise for employers to take steps to show they are taking reasonable steps to prevent sexual harassment.

Some key steps to consider would be:

• Creating and updating report register for complaints about all forms of harassment
• Updating and issuing anti-harassment policies
• Carrying out staff training on the threat of sexual harassment and prevention
• Conducting risk assessments to target risks and what action needs to be taken
• Creating a clear process for reporting complaints about harassment
• Ensuring all complaints about harassment are investigated and dealt with properly and effectively
• Ensuring third party sexual harassment preventative measures are installed

For more information on how to take steps to protect your employees and prevent sexual harassment please contact one of our team.