In October, a new duty for employers to prevent sexual harassment came into force in the UK. Here, Will Walsh, a partner in the employment team at city law firm DMH Stallard, explains what it means for employers.

Sexual harassment in the workplace is already unlawful and nothing in the new laws will change this, nor will they change the definition or scope of what will amount to sexual harassment. The new legal duty places a positive obligation on employers to take reasonable and proactive steps to prevent sexual harassment from taking place.

“The consequences or those who do not comply with this duty are that, in the event of a successful claim for sexual harassment, compensation can be increased by up to 25%. The Equality and Human Rights Commission can also investigate and take its own enforcement action against employers suspected of non-compliance.

What is meant by ‘reasonable steps’?

‘Reasonable steps’ for each employer will depend on their size and resources and the nature of their business. However, as a minimum, all employers should consider the following:

• Conduct a risk assessment to identify where problems could arise and how those issues can be addressed
• Have clear, effective and up to date policies in place
• Train all staff on acceptable behaviour and on how to report matters of concern
• Put effective practices in place to ensure that employees who report concerns receive appropriate support
• Provide additional training to managers on how to handle complaints and deal with any issues effectively
• Develop a zero-tolerance workplace culture in relation to sexual harassment
• Consider and address the risk of harassment by third parties

For all employers, the initial risk assessment will be the essential starting point. Steps rolled out as a ‘tick box’ exercise will not comply with the new legal duty. Employers will only have a clear idea of what gaps there might be and how those might be filled once they have assessed their own specific areas of risk.

Some employers will already have robust processes and training programmes in place as part of a zero tolerance approach and for those it may be the case that, following proper assessment, current practices are already sufficient to address the risks.

What about sexual harassment by third parties?

One area that may be a change for many will be addressing the risk of harassment by third parties. Under current harassment laws, employers are not liable for harassment by third parties. However complaints might still be brought indirectly and the new duty to protect employees from harassment does extend to all forms of harassment, including from third parties.

In view of the relevance of this topic to the moving industry, especially where it relates to sexual harassment at conferences or in other sales scenarios, The Mover asked DMH Stallard to specifically address this issue.  Rebecca Thornley-Gibson, a partner with the firm, responded:

“An employer’s duty to take reasonable steps to prevent sexual harassment now extends to third-party harassment,” she explained.  “However, an employee is unable to bring a standalone claim for third-party harassment, but could raise the failure of the employer to prevent third-party harassment as evidence in a sexual harassment claim and if successful obtain a compensatory uplift.  In addition, the EHRC (Equality and Human Rights Commission) can take enforcement action directly against the employer for its failures. Employers now need to assess risk, identify action and review their processes in respect of an extended range of scenarios where there is potential for inappropriate conduct, but in circumstances which are not directly within their control, such as conferences and work-related social events with clients and customers.

She added: “That is a challenging requirement and requires co-operation from third parties and requires employers to be robust in their responses to third parties who may not welcome external scrutiny.  The Employment Rights Bill is proposing to further strengthen employees’ rights in respect of third-party harassment by enabling standalone claims to be made and for the employer to be vicariously liable for third-party harassment. The new Labour government has also announced that liability for harassment of third parties will become law in the future. Therefore, all employers should take this seriously and should include it as part of their overall risk assessment.”