On 26 October 2024, the new Worker Protection (Amendment of Equality Act 2010) Act 2023 has taken effect. This will place employers under a duty to take ‘reasonable steps’ to prevent sexual harassment in the workplace. This newsletter explores the implications of this duty, the potential liabilities for employers, and the steps that can be taken to mitigate legal risks.
How are employers usually liable for harassment?
A failure to prevent harassment happening, whether that is of a sexual nature or not, can already result in vicarious liability, where employers are held responsible for harassment carried out by their employees in the course of their employment. Sometimes this can include events outside the workplace too. That means that employers can be held liable by an employment tribunal, as well as the individual harasser.
What is the new duty?
If a claim is made, an employer will need to be able to demonstrate that they have taken positive, reasonable steps to prevent the harassment from occurring. It doesn’t give employees a separate ‘stand-alone’ right but a failure by the employer to take preventative measures can, where a tribunal claim involves sexual harassment, result in an uplift in any compensation awarded by 25%, so employers are strongly advised to be prepared for the change.
What exactly is sexual harassment?
In general, harassment is unwanted conduct which has the purpose or effect of creating an intimidating, hostile, offensive or humiliating environment. Where it is of a sexual nature, this is a separate type of harassment. It can arise through actions or words. A significant area of risk in modern life is the use of messaging apps and online platforms, where many claims now originate – so firms need to be vigilant to the possibility of inappropriate exchanges.
What can a tribunal award victims?
Victims of sexual harassment can claim compensation for injury to feelings, which is assessed using the ‘Vento bands’, named after a legal case. These bands categorise the severity of the harassment and determine the level of compensation. Personal injury claims for psychiatric injury can also be pursued in the tribunal, assessed in the same way. A claimant can’t be awarded compensation for both injury to feelings and personal injury.
Understanding Vento Awards
The Vento bands provide a framework for assessing compensation for injury to feelings:
- Lower Band: about £1,200 to £11,700, for less serious cases, such as isolated incidents.
- Middle Band: about £11,700 to £35,200 for cases that do not merit an award in the upper band.
- Upper Band: about £35,200 to £58,700, for the most severe cases, such as prolonged harassment.
Constructive dismissal
In cases where harassment leads to an intolerable work environment, employees may resign and claim that they have been constructively dismissed. This can result in claims for unfair dismissal alongside sex discrimination and harassment, significantly increasing the potential financial liability for employers. If the loss of the job results in financial loss for the employee, they can claim up to a year’s pay for unfair dismissal (capped at £115,115) or unlimited compensation for discrimination.
Claims
Sexual harassment is not only distressing for individuals, measures to deal with it can be very disruptive. Defending sexual harassment claims can of course be costly for employers. And the need for medical experts to substantiate psychiatric impact adds to the complexity and expense of tribunal proceedings. Employers are often forced to weigh the financial and reputational costs of litigation against the benefits of settling claims early.
Proactive measures for employers
The good news is that firms can take measures to reduce the risk of sexual harassment occurring and this can provide a robust defence in a harassment claim against them - not just to avoid the 25% uplift in compensation, but also to avoid liability altogether. To do this, firms should:
- conduct a risk assessment to consider where there might be risk of it happening (for example lone working, job insecurity or customer-facing roles)
- establish a clear policy that defines unacceptable behaviour and details what behaviour will not be tolerated, setting out what will happen if the policies are breached (bearing in mind that existing policies may need to be updated or replaced)
- have a procedure with a clear reporting mechanism to encourage employees to come forward without fear of retaliation
- have a record-keeping system in place to list reports that are made and how they are dealt with
- given the prevalence of online communications, set guidelines for the use of messaging apps and ensure that staff adhere to these standards – and, if possible, monitor systems to detect and address inappropriate exchanges
- training managers on dealing with problems
- above all, invest in training employees so that they are aware of sexual harassment and its consequences. Better still, the training should be regular because this reinforces the importance of maintaining a respectful workplace and ensures that employees, some of whom will be new recruits, understand the policies in place - and shows a tribunal that it is taken seriously.
Further changes?
In its Employment Rights Bill, the new government is committing to making this duty even stronger by requiring employers to take ‘all reasonable steps’ to prevent sexual harassment. The additional of the word ‘all’ may mean that all of the recommendations set out above, or set out in guidance from the Equality and Human Rights Commission, should be put in place.
Conclusion
The new duty to prevent sexual harassment underscores the importance of being prepared. By taking proactive measures - investing in training, establishing effective policies and procedures - businesses can create a safe and respectful workplace, protect their reputation and mitigate the risk of costly claims.
How 3CS can help
Our expert employment solicitors can provide you with the assistance you need.
For advice in respect of employment law, please get in touch.
