Currently, and until this new duty comes into effect, your client must protect staff from discrimination and harassment in the workplace – as set out in the Equality Act 2010. However, this upcoming change will require your client to make a concerted effort to prevent sexual harassment. Essentially, it should become a high priority for them.
Specifically, your client must take “all reasonable steps” to ensure that sexual harassment is prevented in the workplace. The definition of what taking reasonable steps should look like, as well as when employees can bring a claim – when they spot that sexual harassment is not being prevented by their employer or after sexual harassment has occurred – is not yet clear. However, it is hoped that the Government will provide clarity on this in due course.
The “reasonable steps” defence already exists in law. It allows employers to avoid liability when it comes to harassment and discrimination. This is because employers are ‘vicariously liable’ for the actions of their employees (and agents). Even though employers might be unaware of what an employee is doing, they are still liable for any discrimination that occurs unless the employer can show that they took all reasonable steps to prevent discrimination from occurring.
Liability applies to anything that occurs “in the course of employment”. This can extend to events beyond the actual working day, or outside of the workplace – such as office parties, conferences and other work gatherings. Although it is expected that this new duty will go beyond this, a possible “reformulation” of the law, clarity is needed.
The compensation award to employees who make a successful employment tribunal claim is also yet to be made clear.
The Equality and Human Rights Commission is expected to be given more support to enforce this new duty, take strategic action, and “impose legally binding agreements” on offending employers. It will look closely at extending the time limit for bringing Equality Act-based cases to a tribunal from three to six months.
The Commission will also create a statutory code of practice to help employers with compliance.
Your client should prepare to make updates to their existing policies on discrimination and harassment. A big task ahead, but with the Government clamping down on sexual harassment in the workplace, your client will benefit from making preparations sooner rather than later.
Your client will still have to wait for further government guidance before they can know the extent of the changes needed as new policies may be necessary. Either way, taking active steps now to reduce sexual harassment in the workplace will likely help your client avoid costly tribunal claims in future.
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