Discrimination Series Pt1: Duty to prevent sexual harassment

The first of a series of podcasts where we look forward to 2024 and the key legislative changes that are already confirmed as happening, a look at others that could happen in 2024 or in the future.  

We will also look at the key cases that are coming in 2024 that could make important changes or provide important clarification on key areas of employment law. 

This episode looks at the implementation of the Worker Protection (Amendment of Equality Act 2010) Act 2023 which introduces a pro-active duty on employers to prevent sexual harassment in the workplace.  

This episode is not intended to provide legal advice. Rather, it is intended to provide general guidance on the topic discussed.

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Transcript

Discrimination Series

Part 1

Introduction

The first of a series of podcasts where we look forward to 2024 and the key legislative changes that are already confirmed as happening, a look at others that could happen in 2024 or in the future.  We will also look at the key cases that are coming in 2024 that could make important changes or provide important clarification on key areas of employment law. 

We will also do a review of 2023 – essentially a revision session on 2023 – what has changed in 2023 that will effect the way that we progress in 2024.

Discrimination in 2024 pt1: sexual harassment

So, for the first episode of this series I have decided to focus on the forthcoming changes to the legislation in connection with sexual harassment – specifically an amendment to the legislation to requirement employers to take steps to prevent sexual harassment.  

So, do employers not have to prevent sexual harassment now?  This may seem like an incredibly stupid question. But actually, it’s not. So, what are employers required to do to prevent sexual harassment at work? At the moment, in reality - nothing really.

That’s not to say that there aren’t consequences for employers if they don’t try to stop harassment. Workers and employees can bring claims of harassment against under section 26 of the Equality Act 2010. 

But the bringing of a claim doesn’t necessarily mean an employer has to do anything to stop harassment. After all, they can settle claims and just carry on before as has been highlighted in the high-profile cases of Harvey Weinstein and Philip Green.

This called into question whether the current legislation actually works. So, what progress has been made since the #metoo movement? Well, we have seen reported towards the end of 2023 that nearly two-thirds of female surgeons said they had been the target of sexual harassment and a third reported that they had been actually sexually assaulted by colleagues in the past five years. These are truly horrendous statistics.

There is now to be a change in the legislation.  This change will require employers to take preventative action. It will require them to take steps to prevent sexual harassment at work.  

This has been done through the Worker Protection (Amendment of Equality Act 2010) Act 2023. The legislation sets out the introduction of a legal duty to be placed on employers to take reasonable steps to prevent sexual harassment. 

It will also Give employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment.

We expect this to come into force in October 2024.

So, what does taking “reasonable steps to prevent harassment actually mean.  

The only guidance that we have at the moment is previous case law that has assessed the current defence to harassment claims.  

So, to explain, currently under s109(4) of the Equality Act 2010, an employer can potentially avoid liability for a claim of discrimination by demonstrating that they have taken “all reasonable steps” to prevent the act happening in the first instance.

What section 109(4) says in full is:  

“(4) In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment it is a defence for B to show that B took all reasonable steps to prevent A— (a) from doing that thing, or (b) from doing anything of that description.”

What this means is that, as an employer, if an employee of yours acts in a discriminatory way towards another employee (or worker or agent) then you may avoid liability if you have taken “all reasonable steps” to prevent them from acting in that discriminatory way. 

In order to be able to run a reasonable steps it is commonly regarded that the minimum that an employer must, as a minimum, have undertaken the following:

•        have an equal opportunities policy and/or an anti-harassment policy

•        that the policy has been clearly and effectively communicated to everyone

•        that training has been undertaken on dignity at work / equal opportunities / harassment

•        That action is taken when complaints are raised with the business

The Equality and Human Rights Commission will be publishing guidance for employers to assist in the development of their approach to this new legislation.  

But a recent case can perhaps provide us with some guidance already.  

This is the case of Fischer and London United Busways Limited

This comes with a caveat that this is at ET level only and does not therefore have the power and effect that a decision at EAT level would have but nonetheless it provides one of the most recent analyses of the reasonable steps defence.  

A further, and very important distinction to make before I provide some of the detail of this case is the difference between section 109(4) deference and the new requirement under the Worker Protection Act – and that is that under section 109(4) employers must take ALL reasonable steps.  

Whilst the word ALL was also included in the draft legislation, it was removed by the Lords and accordingly the new preventative legislation will only require employers to take reasonable steps and now all reasonable steps.  This will naturally make a difference in the standards that will be applied to these tests.

Notwithstanding this, I still consider that Fisher provides us with a helpful guide to what we need to do.  

In this case the employer, London Busways, argued that it had taken all reasonable steps and pointed at the fact that it had:

•        Equal Opportunities and Harassment policies from 2007;

•        The policies emphasised that it had a “zero tolerance” approach to the enforcement of those policies;

•        The policies were sent to all agencies that provided workers to the employer;

•        The policies were part of the employer’s induction process;

•        Everyone was encouraged to report concerns;

•        There was evidence that complaints (including those of the claimant) were investigated and addressed.

On the face of it, these are reasonable steps to take. However, the law requires ALL reasonable steps to be taken and the tribunal concluded that the following additional steps could have been undertaken by the employer:

1. The Respondent should have kept its policies relevant to discrimination up-to-date. The employment policies dated from 2007. The Equal Opportunities policy refers to repealed legislation, and fails to refer to the Equality Act 2010, despite the fact that that Act is more than ten years old. It is therefore essential that employers keep their policies under review and up to date.

2.      Policies needs to state and be clear as to who they apply to. Where a business uses (as in this case) a large number of agency workers, it is important the policy clearly communicates to that group that the policy is relevant to them, that they can make complaints in relation to breaches of the policy and (of course) that they also need to abide by the standards of behaviour set out within it.

3.      That the focus on “equality” alone is insufficient. Equality without inclusion risks members of a workforce who belong to minority groups not bringing their whole selves to work, with the result that the workplace is the poorer for it. One of Miss Fischer’s complaints in this matter is that she didn’t feel that she was wanted in the organisation because she was transgender. A policy that sets an expectation of inclusion of people with diverse characteristics, and that sets the tone that their skills, experiences, characteristics and perspectives will be celebrated would be a start in changing that experience for other transgender people.

4.      While the employer pointed to the fact that its Equal Opportunities and Harassment policies were on display on its noticeboards many employees only spent a small portions of their working day around the noticeboard. In that context, the tribunal stated that regular and refreshed training and communications emphasising the importance of equality, diversity and inclusion is essential. This could also include attachments accompanying digital payslips, or printed leaflets or other printed communications.

5.      In an organisation of the size of this employer (around 3,000 people engaged), the tribunal found it surprising that they did not have employee representative groups from some of its minority groups, e.g., a LGBTQ+ representative group, or a minority ethnic representative group. Support from an employer in the formation and operation of such groups could allow ideas for improvement to come from diverse groups so as to enrich and improve a business’s approach to issues affecting those groups.

6.      The ET also stated that more should have been done in relation to training. In this hearing, to consider whether the Claimant’s complaints of discrimination on the basis of gender reassignment should be upheld, one of the Respondent witnesses did not know the meaning of the terms “cis” or “trans”, and also said that he did not know the correct term to refer to a woman attracted to women. In areas such as these, as the Claimant stated throughout the hearing, language is important, and the Respondent could do more to train its staff in its appropriate use.

The EHRC guidance will therefore be essential in guiding employers through this uncertainty.  

When we look at enforcement of this legislation, it is not just about the possibility of an increase in the compensation in sexual harassment claims of up to 25%, there is also provision for the EHRC to take direct enforcement action.  Specifically, it will also be able to use powers under the Equality Act 2006 to undertake strategic litigation, investigation and enforcement activity to target systematic non-compliance with the preventative duty.  This could therefore be used by employees and workers in advance (or alongside) the use of their own litigation against their employer.

This is, in my view, the biggest change in equality legislation since 2010.  It will, no doubt, require employers to ensure that the prevention of harassment becomes part of the business compliance toolkit in a way that has not – for a very large proportion of employers – not been the case.  There needs to be an embracing of inclusion and diversity in businesses and an understanding that the use of workplace banter – whether sexual or otherwise – is a business risk that is no longer worth taking.

Of course, we can help you with your compliance with this significant change in legislation in 2024.  

•        Can provide face to face or virtual interaction training for employees on standards of behaviour in respect of matters relating to sexual harassment;

•        E-Learning packages

•        Conduct of investigations into sexual harassment

•        Conduct of grievance and disciplinary hearings into sexual harassment

Simply contact us for further details

In the meantime, we will of course provide another update once the EHRC guidance has been published.