Sexual harassment duty to ‘transform the workplace’: where are we now?

Sarah Calderwood reflects on current legislation for sexual harassment in the workplace and what the implications of a new employer duty could be

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In her Conservative Party leadership bid, Liz Truss inadvertently brought the issue of sexual harassment in the workplace back under the media spotlight. In her role as Minister for Women and Equalities last year, it was Truss who made the commitment to introduce a new proactive duty on employers to prevent sexual harassment at work - describing it as ‘a real opportunity to transform the workplace’. Over one year on and no changes have been put into effect yet, though the government maintains it is still committed to delivering the plans.

As part of this conversation, we are often asked what this duty might look like, what its implications could be for employers, and what HR departments will need to do to be prepared for any new rules.

At time of writing, no detail has been published on what the new duty might entail. The commitment made by the Government Equalities Office was in response to a consultation on sexual harassment in the workplace, and while there was positive confirmation that it would introduce a proactive duty on employers, there are currently no clues as to how this will differ from the obligations that exist in current legislation.

Regardless of what changes might come, and when, it is no bad thing that the government has already achieved an increase in awareness around the issue of sexual harassment. Here is a summary of the current law: 

  • The Equality Act 2010 places liability on any employer if sexual harassment occurs and it has failed to take preventative steps to prevent harassment. An employer may therefore avoid liability for sexual harassment by an employee where it can demonstrate that it took all reasonable steps to prevent the harassment.

  • There are no minimum requirements that an employer can rely on to demonstrate that it has taken reasonable steps to protect its workers. The Equality and Human Rights Commission guide advises that all employers will be expected to have: (1) an anti-harassment policy that is communicated to workers and is effectively implemented, monitored and reviewed; and (2) an appropriate procedure for reporting harassment, protecting victims of harassment and taking action if harassment occurs.

  • Other reasonable steps may include regularly training managers and supervisors in equal opportunities and harassment issues, taking steps to deal effectively with complaints, including promptly and thoroughly investigating complaints, and taking appropriate disciplinary action against harassers.

To a certain extent, many employers already have these policies in place.

It is difficult to envisage how the new duty would look, other than to rehash the existing protections in place for workers, by bringing a focus on the duty within the workplace, reviewing existing policies, and ensuring that all businesses put in place appropriate anti-bullying and harassment policies. It could also see the introduction of more workplace training, leading to better educated staff on harassment issues and delivering an improvement in workplace culture where needed.

In reality, the proposals are probably just a way of publicising and encouraging the existing law to be properly applied – and provided the momentum and publicity is continued, should help to reduce sexual harassment in the workplace. 

Sarah Calderwood is an employment lawyer and partner at Slater Heelis