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Government waters down proposed new duty to prevent sexual harassment

The Worker Protection (Amendment of Equality Act 2010) Bill and the duty to prevent sexual harassment has been watered down to prevent the Bill failing.

It was introduced last year as a Private Members Bill and is supported by the government. As originally drafted, it pledged to protect staff from 1) harassment committed by third parties, and 2) introduce a new duty on employers to prevent sexual harassment. The third party provisions have been removed - you can read why here.

What has changed?

The original draft imposed a new, additional, duty on employers to take all reasonable steps to prevent their staff from being sexually harassed at work. The Bill has been redrafted so that employers now have a duty to take reasonable steps to prevent their staff from being sexually harassed at work. 

What's the difference between taking all reasonable steps and reasonable steps?

Quite a lot! The Equality Act contains a provision under which employers can avoid liability for harassment carried out by their staff if they can show they took all reasonable steps to prevent it from taking place. To establish this you have to take every reasonable step you can. This means that if an employee (or tribunal) can point to a reasonable step you could have taken, but didn't, you will be vicariously liable for the harassment they have suffered. It's often difficult for, even large employers, to meet this test, as this decision demonstrates.

By contrast, demonstrating that you have taken reasonable steps to prevent sexual harassment under this new, additional, new duty will be easier. You will still have to show that you've taken reasonable steps, but you won't be penalised for not taking every reasonable step.

Does that mean that employers will be held to a lower standard when dealing with sexual harassment claims?

No. In the context of sexual harassment claims, you will only be able to avoid being held vicariously liable for the actions of your staff (or other people under your control) if you can show you have taken all reasonable steps to prevent them from doing it. The law in that respect is not changing. 

However, if the claimant succeeds with their claim against you, the tribunal will go on to consider whether you have also failed to comply with the new, and additional, duty to take reasonable steps to prevent sexual harassment. If it finds against you on this, it can award the claimant additional compensation of up to 25% of their compensatory award.

Why has the word 'all' been removed?

It's not entirely clear. During the committee stage in the House of Lords, the government said that it had taken out 'all' because the legislation "now applies to third parties for the first time in some considerable time". That would have made (some) sense if it were true, but it isn't as the Lords had already agreed to bin the third party harassment provisions*.

Both houses agree that sexual harassment in work is 'widespread and under-reported' and have worked together to get the Bill this far. We know from robust studies that the perpetrators are most likely to be co-workers rather than third parties and that inappropriate and offensive comments (including so called 'banter') are more common than unwanted touching. 

It therefore makes sense for the new duty to focus on the steps employers should already be taking to protect their staff from sexual harassment committed by other members of staff, and penalising those who aren't doing enough. You can control what your staff can and can't do or say to one another through putting in place appropriate policies, educating staff, investigating complaints and disciplining staff who breach your standards. Requiring employers to take 'all reasonable steps' to prevent sexual harassment would reinforce that responsibility, and in my view, is appropriate, now that the third party provisions have been removed. 

Requiring employers to take all reasonable steps would not, automatically, lead to compensation being increased by 25% if there was an additional step or two that you could have reasonably taken. Tribunals are only like to award the maximum uplift if you've done nothing or next to nothing to protect your staff. 

It's possible that the Lords will revisit this in September during the report stage.

* The duty applies where an employee has been 'sexually harassed at work' and the government could argue that it's wide enough to include third party harassment as well has harassment from colleagues and other people whom the employer controls. That made sense when the Bill included protection against third party harassment, but makes less sense now those provisions have been dropped. That's because it's almost impossible for employees to bring harassment claims against their employer if they are committed by third parties, and this duty only kicks in once an employee has brought a successful claim.

When does the new duty to prevent sexual harassment come into force?

These provisions will come into force 12 months after the Bill receives Royal Assent. It's therefore possible that it will come into force in the Autumn of 2024. We'll keep you posted. 

Our new D&I training modules

We have created two new online diversity and inclusion modules to help employers properly train staff. One applies to all employees, and the other focuses on line managers to help them to understand the key role they play in ensuring that the people they manage behave appropriately. These modules cover sexual harassment and include examples to help managers understand the legal issues they need to consider when dealing with banter, unwanted attention and touching. If you'd like to know more about these, please speak to Charlotte Rees-John, Jenny Arrowsmith or Gordon Rodham.

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