Employment Snapshot: September 2024

Welcome to the Employment Team’s latest update

This month our snapshot will focus on the most significant forthcoming amendment to the Worker Protection Act.

New obligations on employers to prevent sexual harassment at work – how can workplaces prepare?

On 26 October 2024, the Worker Protection (Amendment of Equality Act) Act 2023 will come into force, placing a “positive duty” on employers to take “reasonable steps” to prevent sexual harassment of their employees.

What does the “positive duty” mean to employers?

Currently, employers are required to show that they have taken all reasonable steps to prevent an employee’s complaint of sexual harassment. The new positive duty goes further than this as it is designed to encourage employers to take proactive measures, anticipating any risks of sexual harassment and implementing reasonable steps to prevent it. Further, employers will be required to take action where sexual harassment has occurred to prevent it from happening again.  The new law is drafted widely enough to cover harassment by any person (eg clients and other business contacts) not just other workers.

What are the consequences for non-compliance with the new positive duty?

There are risks of both financial and reputational damage for employers failing to comply with this new positive duty:

• Financial – where an employer fails to comply with their duty to take “reasonable steps” to prevent sexual harassment, and a claim is well-founded in the employment tribunal, an uplift of 25% may be applied to an uncapped compensation award, which could be costly.
• Reputational – the Equality and Human Rights Commission (EHRC) has the power to take enforcement action and conduct its own investigation into the organisation.

How can employers prepare for the new positive duty?

Employers need to ensure that reasonable steps to prevent sexual harassment are set out in an up-to-date policy/procedure and that it is adhered to.

What is deemed a reasonable step will vary for different employers depending on an array of factors e.g. their size, resources available, the nature of the organisation and any risk factors. Employers have long been aware of the need for policies and procedures but also to have and training to ensure that all employees can be shown to have been made aware. The new obligations go much further than a simple tick box exercise.

Risk factors will differ from one workplace to another, depending on the nature of the business. Employers should be aware that the following factors could increase the risk of sexual harassment occurring within their organisation:

• Customer-facing workplaces e.g. retail and hospitality sectors – employers will have little or no control over the actions of third parties such as customers;
• Work social events – particularly those involving the presence of alcohol;
• Lone working – for example, in a petrol station kiosk;
• Attending meetings off-site – employers will have no control over the off-site environment; and
• Work travel – employers will have no control over the environment whilst staff travel for work.

Where any of the above factors feature within an organisation, employers should conduct a heightened risk assessment to comply with the new positive duty to prevent sexual harassment.

The extent to which the following examples of reasonable steps will be appropriate to implement within any organisation will depend on those above factors:

• Implement inclusive practices – employers need to show staff they have a clear zero-tolerance approach to harassment.
• Ensure an effective complaints handling process is in place – staff must feel their complaints will be listened to and dealt with empathetically to encourage them to come forward.
• Regularly monitor and review all reasonable steps implemented – the requirement is a live, continuing duty requiring employers to be able to show ongoing compliance with the new positive duty.

Case law

A case highlighting the importance of employers taking reasonable steps to prevent sexual harassment, particularly at work social events, is that of P v Crest Nicholson plc and Crest Nicholson Operations Ltd.

Facts

In November 2019, Crest Nicholson held an office Christmas party, which staff were expected to attend. A free bar was provided. Throughout the event, one of the male managers (R) displayed increasingly concerning behaviour toward his female colleagues, making various unwanted advances.

One manager attempted to intervene but stopped after receiving threats of violence from R. No other attempts were made to address R’s behaviour.

Later that night, R accompanied the Claimant back to her hotel room, who was heavily intoxicated. The Claimant later reported to her line manager she had been sexually assaulted and raped by R.

R was suspended and later dismissed following a full investigation into the accusations against him.

The Claimant brought a claim of harassment against her employer, arguing that R’s actions were committed in the course of his employment.

Decision and comment

The Employment Tribunal upheld the Claimant’s claim, and her employer was held liable for sexual harassment, having failed to put reasonable safeguards in place for staff at the Christmas party.

With Christmas party season fast approaching and the new legislation coming into force imminently, it is essential that employers stay ahead of the curve and make changes now.

If you would like any advice on what reasonable steps your business should take to meet the requirements set out in this new legislation or for a bespoke risk assessment template, please get in touch with a member of the Employment team, who will be happy to assist.