Is this how to stop sexual harassment?

Forty-six years after the Sex Discrimination Act 1975, in light of the #MeToo campaign, the Government has decided that the law against sexual harassment needs reinforcing, but will its proposals reduce harassment or simply add cost and red tape?

Following a consultation, the Government says it intends to create a duty requiring employers to prevent sexual harassment in the workplace. Some might think such a duty already exists, in that employers are liable for sexual harassment by their employees unless they can show that they took all reasonable steps to prevent such behaviour. This proposal, however, takes things a step further and envisages potential liability without an incident of harassment. Enforcement would be by the Equality and Human Rights Commission (EHRC).

It was floated in the original consultation paper that the duty might also be enforceable by individuals, for example by seeking compensation of up to thirteen weeks’ pay for a failure by their employer. It appears that something along these lines will be introduced, but that individuals will be able to take action only after an incident has taken place, presumably as an additional head to any harassment claim.

What would such a duty look like? No doubt what was reasonable would vary with the size and resources of an employer, but I imagine that, at the very least, we would be looking at having an equal opportunities policy, a grievance procedure and providing regular training to staff. Clues can be gleaned from the EHRC’s Technical Guidance on Sexual Harassment at Work, published in January 2020. Some of its suggestions include:

Ensuring policies are published on external facing websites, mentioned in contracts and publicised to staff, for example during induction and on notice boards;
keeping the effectiveness of policies under evaluation, particularly by reference to staff surveys and a centralised record of incidents; and
regular industry-specific training for all staff and specialist training for those supporting employees making complaints.

EHRC enforcement often comes by making agreements with employers, for example as it did with Sainsbury’s in 2019, which largely focussed on training (for both managers and employees), better communication and regular reporting back to EHRC.

What will this lead to, other than work for lawyers and consultants providing training? A cynic would say more expense and tick-box administrative exercises, mainly by large employers, with small employers hoping that they fall beneath EHRC’s radar. I am not sure that the prospect of perhaps paying thirteen weeks’ pay on top of harassment compensation will, in itself, prompt a reluctant employer to launch an annual training programme.

One would, of course, hope that, where it happens, the communication would encourage people to speak out and the training would have some effect on potential harassers, meaning that incidents of harassment (and consequently claims about harassment) would fall. Victims of harassment by colleagues may also ascribe less blame to their employers if they are genuinely supportive.

Currently the statutory defence, where an employer can avoid liability for the actions of a rogue employee who has harassed a colleague, is rarely used, because few employers can show that they have taken “all reasonable steps” to prevent harassment. If employers feel under more compulsion to take the steps, perhaps the defence will be used more and the focus of claimants (employed by big employers) will have to shift to suing their harassers personally.

Interestingly, the proposed duty would extend only to sexual harassment and not harassment on other grounds such as race, sexual orientation, gender reassignment, religion, belief or age. The policies and training will probably address these types of discrimination too, but, for now, it is sexual harassment which takes centre stage, just as it did when it was the first type of harassment to be outlawed in 1975.

Please contact Daniel Isaac for further information.

The contents of this article are intended for general information only and do not constitute legal advice. Wallace LLP cannot accept responsibility for any loss arising from the use of the content in this email. This information was prepared on 27 July 2021.