Karen Holden from A City Law outlines how new legislation could offer enhanced protection against sexual harassment at work.
Unwanted conduct in the workplace and elsewhere is something that women frequently suffer and as employment solicitors we are sadly instructed on this way too much. However, it does seem that finally there is more social and legal awareness being displayed regarding the level of harassment and inappropriate conduct towards women in general.
The #Metoo movement has opened the door to spotlighting intrinsic unwanted conduct and harassment, which at varying degrees many women in the workplace are exposed to. The introduction of the Worker Protection (Amendment of Equality Act 2010) seeks to extend the Equality Act 2010 protections already in place when it comes to unwanted conduct of a sexual nature.
We work in a relaxed and safe environment and so should all employees and having the strength and support to speak up needs to be encouraged, processes and policies to address these issues need to be clear and available and employer and employees need to work together to create a work place to enjoy working together.
The Equality Act 2010 is the current legislative framework which covers the prevention of sexual or any other harassing or discriminatory behaviour. This new amended legislation makes further provision regarding sexual harassment specifically and includes:
Unfortunately , there are many among us who at points in our careers have been on the receiving end of unwanted and harassing behaviour. Currently if this behaviour is demonstrated from a client or customer rather than a colleague, there is no employment law that can be relied upon. It is difficult for employers who want to maintain customer relations, but this should never be to the detriment of an employer’s staff. This new Act will mean that, should this behaviour occur in the course of work but not from another employee, the employee impacted will be able to take action against the employer for failing to protect them from such behaviour. This means employers need to regard client, customer, sub-contractors and other third-party conduct around its employees.
Unwanted conduct displayed towards an employee by a client and customer would then be captured, offering, we hope, employees greater safety and security in their workplace. Clearly, this could then extend to corporate events and for those in the hospitality industries, would mean employees would be able to put in a claim against employers for unwanted conduct from customers at events. This is a far-reaching obligation on employers and the criteria is set out in the Act as to what this harassment and unwanted conduct can include. Ultimately, the employer will be under fire for such third party behaviour if they have not taken ‘all reasonable steps’ to prevent it. The key point is that the actions of the third party, if taking place in the course of work, will give rise to a claim by the employee against the employer. This offers a significant extension of protection to employees to ensure they do not have to tolerate such unwanted behaviour in the course of their work and widens who the employer has a duty to protect them against.
How far then is the accountability for the employer? The extent of the duty in the current draft form of the Act is clear. It states as follows that an employer “must take all reasonable steps to prevent sexual harassment” of their employees in the course of their employment. “Sexual harassment” means “unwanted conduct of a sexual nature”. Any contravention is enforceable under Part 1 of the Equality Act 2006 and subject to a compensation uplift.
This means that the breach of duty will have a financial impact on the employer who has not taken all reasonable steps to prevent sexual harassment in the course of the claimant’s employment. This is a wide definition.
Arguably employers should ensure they prevent this anyway, but when extending liability to third parties, whose actions cannot be addressed within the employers’ disciplinary or contractual framework, it may be very difficult legislation for employers to navigate and could be potentially costly. The accountability to the employer of a client’s actions towards an employee could potentially lead to amended commercial contracts between employers and clients to include conduct provisions. As such, clear expected behaviours, policies and procedures about how this is addressed and training for managers must become a priority for HR managers and management teams.
This is not so achievable in the retail or hospitality arenas, particularly the latter. Continuously allowing the same individual who is harassing a staff member but passing it off as ‘banter’ despite the staff member making it clear they are not happy with it could lead to a claim against the employer under this legislation. So may contracts and terms with suppliers, event organisers and other third parties will also need to be addressed to ensure accountability and enforcement is monitored and enforced.
Fundamentally, the employer owes an employee an implied duty of care by virtue of their employment contract. Employers’ policies usually cover acceptable and unacceptable behaviour in the workplace, the ability to report and the consequences of such behaviour. The implied duty of care owed by the employer should include ensuring the safety and ability to go about work without being exposed to unacceptable behaviour and this legislation further fleshes that out with clear financial sanctions for an employer breaching this. Many will welcome this as it will mean that employees raising concerns regarding inappropriate behaviour and harassment will not be easily brushed off or ignored. A revisit of staff policies and how to address these concerns internally will be needed.
For many women, this will be a relief. A framework for being taken seriously when raising concerns regarding clients or customers, with the security of knowing that if ignored, there is an alternative way to address this, will be welcomed. A 2020 government survey of sexual harassment showed 29% of those impacted had experienced it in the workplace or in work-related environments. 63% of those had experienced the behaviour from a man in the workplace environment. Many may feel this proposed legislation is long overdue.
An employer will have to take seriously any allegations made against clients, customers and third parties. The dismissing of unwanted conduct as ‘banter’ or ‘to be expected’ in certain environments should have no place in 2023 and, with this proposed legislation, these will be very expensive views for employers to take.
Those employers wanting to get ahead of the game may want to address the workplace policies they have now to include clear mechanisms for reporting such unwanted conduct and clear outcomes which show the employer taking accountability and confirming their duty and how they will demonstrate this. The legislation has not yet come into effect, but there is no doubt that it will be a welcome layer of protection for many in the workplace.
It is essential to encourage open communication and have approachable HR and managers trained to react quickly and in line with policies. Those employers open to setting clear policies and a none-acceptance environment are more like to attract, retain and enjoy committed employees.
Watch this space!