Show notes
Our latest podcast by Rebecca Cairney and Mark Landon will look at the new duties on employers to prevent sexual harassment in the workplace.
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Transcript
Rebecca: Hello, everybody and welcome to the Employment Insights podcast.
Rebecca: This is the next podcast in our series where we're discussing hot topics in employment law and what they mean for you and your business.
Rebecca: My name is Rebecca Cairney, and I'm a Principal Associate and team manager for the employment team based in Liverpool. And I'm joined today again by my London based colleague, Mark Landon, who's a Partner.
Rebecca: Hi, Mark. Thank you for joining us.
Mark: That's a pleasure.
Rebecca: Good to have you with us.
Rebecca: So just to sort of set the scenes for everybody. So, hot topic at the moment, we know that the Worker Protection Amendment of Equality 2010 Act 2023 is due to come into force on the 26 October.
Rebecca: And we know that new guidance has just recently been published.
Rebecca: Are you able to talk us through, I suppose, just to start us off, what the new law actually says?
Mark: Yeah. No. Sure.
Mark: So, I mean, this actually was a piece of legislation passed a year ago in October 2023. So, we we've known it's been coming, and it is one of those sort of hangover bits of law that, was created under the old government, but comes in under the new one. So, as you say, the Work of Protection Amendment of Equality Act 2010 Act 2023, a really simple title, comes in on the twenty sixth of October, and it is actually quite short. What it says is this, it's gonna insert a new section 40(a) into the equality act, which will require that an employer must take reasonable steps to prevent the sexual harassment of its employees in the course of their employment and that a contravention of that will be enforceable by the Equality and Human Rights Commission.
Mark: And, also, if a claimant successfully brings a claim for sex harassment in the employment tribunal, the employment tribunal will have the ability to increase compensation by up to 25% depending upon the degree to which, if at all, it thinks that the employer has failed to fulfil its preventative duty.
Mark: So, there's quite a nasty financial sting in the tail.
Mark: And, of course, hindsight can be a wonderful thing when you actually end up in the tribunal.
Mark: Now in terms of guidance, the equality and human rights commission published technical guidance on sexual harassment and harassment at work back in 2020.
Mark: And, when, it became apparent that this new legislation was on the horizon, there was a consultation exercise run by the EHRC between mid-July and mid-August this year, whereby it set out some draft amendments to its technical guidance from 2020, in order to reflect this new preventative duty.
Mark: And the, EHRC published the finalized version of the technical guidance on the 26 September. So, it came out last week, and what it does, is explain both the background law and the practical steps, which it says that employers should take in order to fulfil this new preventative duty. So, it's pretty comprehensive. I mean, it's certainly long.
Mark: And I think in some ways, Rebecca, it it's quite helpful because as you know, there is already an existing, defence for employers against vicarious liability for the discriminatory acts of employees.
Mark: And that is to show that the employer has taken all reasonable steps to prevent such acts of discrimination.
Mark: And I think, certainly, what this technical guidance does is to provide a lot of guidance around both what you should do to fulfil the defence against vicarious liability and what you should do in order to fulfil this new preventative duty. So, I think in a sense actually, it is good news because it's taken a lot of the case law that we've seen over the years, and it sort of, put it into one resource if you like. And also, actually, it's quite apparent that there were a fair amount of changes made as a result of that consultation between mid-July and mid-August.
Rebecca: Okay. So what sort of guidance has been provided to help employers and also employees, I suppose, understand this new law?
Mark: Yeah. Yeah. And, actually, that's an important point just you make there at the end. The guidance is very much aimed for both employers, employees, and their representatives. You know, this isn't one of those bits of guidance where there's a bit for employers and a bit for employees. So the guidance is divided into chapters, and there are four chapters.
Mark: The first two are sort of background, and they talk about what is harassment and what is victimization.
Mark: Then I think where it gets very interesting for employers is chapter three talks about obligations and liabilities under the equality act.
Mark: And then that, in turn, that chapter is, divided up into various sections. So, the first is around the preventative duty, and it sets out the duty on employers to prevent the sexual harassment of workers, and it explains actually what that means. It also talks about the need to take reasonable steps.
Mark: And here, actually, it makes the point that the law doesn't list specific steps, But the guidance suggests that, for example, the sort of things you should do is consider the risks of sexual harassment occurring in the course of employment, think about the steps you could take to reduce those risks and prevent such harassment and then consider what steps it would then be reasonable to take, and then implement those steps.
Mark: So, essentially, do an audit a bit like a health and safety audit, work out actually what the risks are, and then having assessed what those risks are, work out what steps would in in theory, either reduce the risk or prevent the risk, and then decide for yourself whether those steps are reasonable. And what the guidance says in deciding whether a step is reasonable, whether a preventative step is reasonable, the factors that will be relevant will include, and this is a non-exhaustive list, the size and resources of the employer, the nature of the working environment, the sector in which the employer operates, the risks present in that workplace, the nature of any contact with, third parties, and also the type of third party and the frequency of that contact, the likely effect of taking a particular step, and whether an alternative step might be more effective.
Mark: I mean, to be honest, I'd probably put that at first. You know, how effective is the step likely to be?
Mark: The time cost and potential disruption of taking a step weighed against the benefit that it could achieve, whether concerns have been raised by, with the employer in the past. So, in other words, part of the preventative duty is does the employer learn when things have gone wrong? And there's very much here a focus on things will go wrong, and you've got to take the learning points from those cases.
Mark: Compliance with regulatory standards such as those published by the General Medical Council, and whether, steps appear to have been effective or ineffective in the past, then again, what learning points you can take from it. So, there is actually, you know, a lot of practical guidance there. And it then goes on chapter three to talk about enforcement by the Equality and Human Rights Commission.
Mark: And again, only the EHRC can enforce if they think there's been a breach of the preventative duty. If companies aren't doing enough, it can take enforcement action. And of course, you know, it's the usual bad reputational news there because if the EHRC think you haven't done enough, it can issue an unlawful act notice.
Mark: It can enter into a formal legally binding agreement with the employer to prevent future unlawful acts. And actually, an extremist, it can seek a court injunction to restrain the employer from failing to prevent with the duty.
Mark: So, you know, it is one of those things, I suspect, in due course, the EHRC will look for a large employer, because actually, there's nothing quite like making an example of someone to drive a point home.
Mark: And then the guidance goes on to talk about the sort of factors that a tribunal should look at in deciding whether or not to increase compensation when an individual has proven a case of sexual harassment.
Mark: And, you know, it sort of works its way through the sort of things that will be taken on. Now I think the other thing to bear in mind is this. We're used to the concept of sort of vicarious liability with employee an employee, you know, co-worker discrimination.
Mark: But what the technical guidance says here is that the preventative duty also requires employers to consider the risks posed by third parties to staff. Now this is interesting, of course, because under the Equality Act, an individual can't bring a claim for third party harassment. That was actually abolished in 2013. It never really got used.
Mark: But actually under this technical guidance and under this new preventative duty, failing to protect your staff against third party harassment could amount to a breach of this new preventative duty. So even though an employee couldn't claim third party harassment against an employer, the EHRC could go after the employer, if in fact it wasn't taking steps to prevent third party harassment. And the sort of things that that the guidance talks about is this. Yeah. I mean, let's take the legal world.
Mark: Periodically, there are all sorts of awards and dinners and various things. And, you know, very often, of course, one perhaps goes with clients and meets various people and so on and so forth. And actually the preventative duty would encompass reminding our own staff about expected standards of behaviour when attending such events. And I think also, reminding those with whom they will be getting together about expected standards of behaviour.
Mark: And so if, for example, you are a factory and you have regular suppliers coming on-site, you would be expected to brief them about expected standards of behaviour as part of this preventative obligation.
Mark: If you had customers coming on-site, you would again be expected to, find somewhere briefing them about expected standards of behaviour. So, it's pretty far reaching, you know, given that it actually goes quite a long way beyond what the Equality Act itself, sort of outlaws. Now I guess, you know, the practical bit is chapter four, which really sets out then the sort of, practical aspects of, taking steps to prevent sexual harassment. And it talks about, assessing risks relating to harassment, the sort of things you would have to do. And this is so let me give you an example. It says employers should make an assessment of risks relating to harassment, sexual harassment, and victimization, and then existing risk management frameworks traditionally used for health and safety could be used for this process.
Mark: Assessment should identify the risk and control measures, and factors may include, for example, power imbalances, job insecurity, such as the use of zero as contracts, agency staff or contractors, those who work alone or at night, out of hours working, where there is a presence of alcohol where you have customer facing duties, particular events that raise tensions locally or nationally, a lack of diversity in the workforce, especially at senior level, if you've got a need to travel to different locations or you're likely to be seconded, if you're working away from home, if you're attending work functions, conferences, training, and so on and so forth. So, you know, it it's very practical, but it's also very broad. So, it talks about doing assessments. It talks about the importance of drafting effective policies and procedures and communicating those to staff, to third parties, to customers and suppliers.
Mark: It talks about actually how to handle malicious complaints because I think one of the big features, and one of the reasons for this preventative duty is anecdotally, a large number of people who suffer sexual harassment never actually raise a complaint about it. And that's partly, I think, because they think nothing will be done about it, partly because they think they'll be ostracized, and also, actually, because a lot of policies will say that should you raise a malicious complaint, you can be disciplined. This guidance is saying, look, you gotta be careful to make the point that making a complaint that you genuinely believe in, and which is not upheld is not a malicious complaint.
Mark: A malicious complaint is one which you make knowing that it's untrue.
Mark: And so it talks about that. It talks about interaction with other policies. It talks about raising awareness of policies. It talks about evaluating policies and procedures because the point here is none of this is set in stone. It's gonna be evolving all the time, and you've got to look at on a constant basis how well are our preventative measures working, how can we tell how well they're working, you know, what sort of quantitative analysis can we do.
Mark: And then it goes on to talk about detecting harassment and training, arrangements for agency workers, things like addressing power imbalances, and so on and so forth. And I think the final thing is there is actually also in addition to this, technical guidance, an EHRC employer's eight step guide to preventing sexual harassment at work. It's essentially a highlights reel from the much longer technical guidance. And the eight steps here are develop an effective anti-harassment policy. Step two, engage your staff through surveys, feedback, etc. to find out where any potential issues may lie. Assess and take steps to reduce risk, so that risk assessment.
Mark: Then step four is reporting. Consider using reporting systems, and they make the point here you should have more than one in case there are any sort of barriers in any one reporting system. And you've got to make sure those reporting systems are accessible to a diverse, ethnic, disabled, etc. workforce. So, you've got to make sure at the very least, if you've got these reporting systems, they can be effectively used by people.
Mark: Step five is training. Step six is what to do when a complaint is actually made. Step seven is about dealing with third party harassment. And then step eight is monitoring and evaluating actions.
Mark: Again, learning as we go forward, a constant virtuous circle. When things go wrong, what are the things we can take from it? So, there's a lot there, and it is worth a read. I mean, to be honest, I would probably say to any plant, start with the eight-step summary.
Rebecca: Yeah.
Mark: And then you can look at the more detailed technical guidance. They're both available on the EHRC website.
Mark: And I think, you know, I think let's be positive about this. I think what we've got in one place at last is a single source of really good legal and practical guidance as to what both the preventative duty requires and also, by definition, what the all reasonable steps of defence requires with regard to the carer’s liability.
Rebecca: But, yeah, an awful lot for people to take in, I suppose.
Rebecca: So having looked at, the guidance in some detail then now, Mark, is there anything you know?
Rebecca: Do you envisage any issues or problem areas that might arise as a consequence of this?
Mark: Well, yes I do actually and it's an irony. So, you know, clearly, this preventative duty has been brought in because, you know, at this point in time, and, of course, as we know for decades before, sexual harassment has been a particular problem. But as you know, there are there are nine protected characteristics, things like in addition to sex, race, disability, sexual orientation, religion, etc.
Mark: And I suppose the potential problem is this. In a sense, up to now, there's been no hierarchy between those protected characteristics because actually the point about the Equality Act 2010, was to consolidate and rationalize all existing, discrimination law into one act, and so that, actually, you could sort of treat all the protected characteristics in the same way, essentially.
Mark: Now what we've got here is an obligation to take preventative steps to, put an end to sexual harassment.
Mark: And the guidance is very clear that this only applies to sex harassment. It doesn't apply to other forms of harassment.
Mark: The problem is this.
We already know that under the Equality Act, an employer will be liable for discriminatory acts between coworkers unless the employer has taken all reasonable steps to prevent such discriminatory acts. I mean, the other caveat is the acts must happen in the course of employment. But I think, to be honest, Rebecca, with agile working, it's quite hard these days almost to find things that fall outside of the course of employment. So, what you've got is you've got this long standing defence of having taken all reasonable steps to prevent discrimination, including harassment. Now if I'm an employee and I have suffered racial harassment and I bring a claim against the individual who harassed me and my employer under the vicarious liability flag, if you like.
Rebecca: Yeah.
Mark: And if my employer then goes, oh, actually, we're not liable because we've taken all reasonable steps to prevent racial harassment.
Mark: Well, if there's anything that the employer has done over and above to prevent sexual harassment as compared to racial harassment, albeit in fulfilment of this new preventative duty, the victim of racial harassment is likely to go, well, hang on a minute. You clearly haven't taken all reasonable steps to prevent sexual harassment because you've done more to prevent sexual harassment.
Rebecca: Yes.
Mark: So it seems to me that any prudent employer ought to take the guidance on preventing sexual harassment and apply it equally to preventing every other form of harassment. Now, you know, when doing so, you don't want to detract from the fact that sexual harassment has its own particular, if you like, bespoke challenges.
Mark: And, you know, clearly, it seems to me that from time-to-time different protected characteristics tend to come centre of the radar. So, at the moment with what is going on in the Middle East Yeah. You know, we have certain clients where religious based discrimination, is a is a heightened risk because of strength of feeling that might be going on within workplaces. And so, you could see, for example, that if one were looking at the preventative duty in the whole, one would say, well, actually, at this moment in time, you know, what should we be doing to try and diffuse any problems with regard to those with differing religious beliefs and so on and so forth?
Mark: So, I so I think the challenge is going to be you don't want to undermine the all reasonable steps, the carers liability defence, by only implementing preventative steps to stop sexual harassment. I think you've got to look at the guidance and say, look. And ethically, it must be right. I mean, you know, we don't want anybody to be harassed as an employer.
Mark: And if there's something we can do that's effective in stopping sexual harassment, well, actually, why on earth wouldn't you replicate it in order to stop religion, discriminate disability, and so on and other forms of harassment?
Mark: That being said, of course, I think things like power imbalances, for example, are something which we know is you know, creates a heightened risk of sexual harassment.
Mark: You know, I don't think power imbalances creates the same risk, for example, of disability related harassment.
Mark: So, I think, you know, you've gotta be realistic when you're assessing the risks in saying, well, what are they likely to create a risk of? But, you know, I think one would have to say, look. Let's do a risk assessment for all protected characteristics.
Mark: If we flag up particular risks relating to sex, we tackle those as part of the preventative duty. But, actually, if as part of that assessment, we flagged up risks relating to disability or religion or sexual orientation or whatever, we've also got to action those because, you know, we really can't sensibly have a higher standard for one protected characteristic over another.
Rebecca: Yeah. No. Absolutely. That all makes sense. But I suppose an awful lot for employers to take into account then at the moment, especially with this coming in on the 26 October.
Rebecca: Obviously, you know, we we'll give our contact details to the listeners so that if there is anybody that needs any support on, you know, dealing with any of this, implementing any of it. But it sounds certainly to me like the key takeaways are, have a read of the guidance and certainly those eight steps to begin with, and start working through those.
Rebecca: Are they really key messages here?
Mark: Yeah. I think so. And, you know, if you've got a regularly reviewed, policy, equality and diversity policy that, makes clear about expected standards of behaviour, I don't think you're gonna be looking at huge changes.
Mark: And I think, you know, actually, you know, the plus side, the very positive side of this is that the technical guidance will give you a really good source of information so that you can assess at the moment how good your existing policies are and where they might need to be reviewed and updated. So, you know, I think I wouldn't go into panic mode, especially as we're about to get a new employment bill and a whole lot of other things landing on the horizon. Yeah. But, equally, I think that it is something that, you know, you do need to have a read of and then just assess whether or not there are steps that you might take, that you haven't already done.
Rebecca: Yeah. That makes sense. Thank you, Mark.
Rebecca: Okay. So, thank you everybody for listening and tuning in today. We will continue to cover this topic going forward and, I'm pretty sure our next episode of employment insights will, hopefully be covering the, the employment bill that's due to land, sometime around the 10 to the 12 of October. I think, people are expecting it, aren't they, Mark?
Mark: It's that's the hundred days from the general election. Yeah?
Rebecca: Yeah. Absolutely. So, we will absolutely keep everybody updated on where we get to with that.
Rebecca: But for now, if you do need any assistance with anything employment law related, then please either contact myself at Rebecca.Cairney@weightmans.com. Or, alternatively, if you need any training or anything like that, then, you can contact Mark. Mark, what are your contact details?
Mark: It's, mark.landon@weightmans.com. That's the best way, most reliable way to get in touch with me.
Rebecca: Thank you very much and thank you everybody again for listening and hope you tune in again soon.
