Here is the Hot Topic for July 2024 – Protecting Employees from Harassment. An accompanying webinar will follow, which will be hosted on 11 July 2024.
One of the most important responsibilities an employer has, is when it comes to protecting and safeguarding its workforce from harm and one area specifically is harassment in the workplace.
Harassment can take many forms and employers must act not just within the requirements of the Equality Act 2010, but also be aware that the actions of their employees and the business may also breach the Protection from Harassment Act 1997. We are also expecting legislative changes from October 2024 specifically in the area of sexual harassment under the Equality Act 2010.
In this Hot Topic, we will look at:
- the current harassment laws
- harassment under the Equality Act 2010
- changes to the Equality Act 2010
- what the changes mean for employers?
- Reasonable steps to protect employees from harassment
Current harassment laws
In the UK, harassment connected to employment and relating to a protected characteristic (age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief and sex or sexual orientation) is unlawful under the Equality Act 2010. There is also protection from harassment based on a person’s membership or non-membership of a Trade Union, and specific to Northern Ireland, protection against harassment on the grounds of a political belief.
This area of employment law protects workers when applying for a job, during their employment, and in some circumstances after employment has ended, such as providing verbal/written reference.
As noted above, to have a claim under this Act, the worker must hold one of the noted protected characteristics, but liability can still arise through other legal duties. For example, all employers have statutory duties that underpin the employment contract. There is a statutory duty of care, duty of trust and confidence as well as a statutory duty of fidelity (good faith). This means employers can be subjected to breach of contract claims or claims for constructive/unfair dismissal, where they have failed in these obligations.
Under the Protection from Harassment Act 1997, harassment is both a criminal and civil action, which means an individual can also be prosecuted in the criminal courts. It is therefore important for employers to be aware that individuals can be personally liable for acts of harassment and face criminal proceedings.
Harassment under the Equality Act 2010
Harassment is a form of discrimination under the Equality Act 2010 (the Act). It has a legal definition, which is:
Person A harasses another (B) if—
- A engages in unwanted conduct related to a relevant protected characteristic, and
- the conduct has the purpose or effect of:
- violating B’s dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
Person A also harasses B if—
- A engages in unwanted conduct of a sexual nature, and
- the conduct has the purpose or effect of:
- violating B’s dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
Person A also harasses B if—
- Person A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,
- the conduct has the purpose or effect of:
- violating B’s dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
- because of B’s rejection of or submission to the conduct, Person A treats Person B less favourably than A would treat B if B had not rejected or submitted to the conduct.
As you can see in the legal definition, there is a specific clause on sexual harassment.
Harassment, including sexual harassment, can be:
- ongoing or a one-off act, that can take many forms, from a joke or ‘banter’ to actual physical violence.
- persistent, or an isolated incident and can take many forms, from relatively mild ‘banter’ to actual physical violence.
- intentional, obvious, or violent, but it can also be unintentional or subtle and insidious.
- In the form of nicknames, gossip, intrusive or inappropriate questions and comments. It can include unwanted physical and verbal conduct, coercion such as threats of dismissal or loss of promotion or even isolation through deliberate exclusion from communications, groups, or social groups.
Under the Act, it does not matter whether the alleged harasser possesses the same protected characteristic for which the alleged victim feels harassed, and that the perception of the individual who was allegedly harassed is usually more important than the intention of the alleged harasser.
In some cases, employees may also not realise that their behaviour constitutes harassment and so it is important for everyone to realise that behaviour which may be acceptable to one person may not be acceptable to another. The fact that harassment may not have been intended, does not mean that it cannot have occurred.
However, harassment will not have taken place if the effect on the alleged victim is wholly unreasonable particularly in the circumstances of the case. Each situation will have its own set of circumstances, and so what is ‘unreasonable’ is difficult to define, it will be for an employment tribunal to weigh up the facts of the case in determining whether the effect on the victim was reasonable in the given situation.
Somebody who complains of harassment need not necessarily be the person towards which the behaviour is directed. An employee may overhear for example comments made to a colleague for which they are offended by. They are entitled to raise a complaint about it.
Furthermore, in addition to the victim, someone who witnesses harassment toward another person is also entitled to bring a legal claim in tribunal, if it had a negative impact on their dignity at work – even if they do not share the characteristic for which their colleague (the victim) was harassed.
Not all forms of protected characteristics are explicitly protected from harassment. For instance, marriage and civil partnership, and pregnancy and maternity are not. It doesn’t mean these groups of employees cannot raise a tribunal claim for allegations of harassment, instead, it means the avenue to bring a claim would be as a claim for direct discrimination on the grounds of another protected characteristics such as sex.
For claims relating to conduct of a sexual nature, the employee does not need to show a connection or relationship to a protected characteristic.
At an employment tribunal, the judge will be concerned with three things when deciding if harassment has occurred:
- The effect on the employee by considering the victims perception
- the other circumstances of the case and
- whether it is reasonable for the conduct to have had that effect.
Tribunals can take a dim view where a company has failed to follow its own policy, and where the ACAS Code of Practice on Disciplinary and Grievance has not been followed it may make an adjustment to the award by up to 25%.
Changes to the Equality Act
From 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force. This Act introduces an amendment to the original Equality Act 2010 by introducing a specific new duty on employers to take reasonable steps to prevent sexual harassment of its employees.
Employment Tribunal claims under this new duty cannot be standalone claims, instead a tribunal will only consider claims for this type of breach only where a claim for sexual harassment has been upheld.
If an employee successfully claims sexual harassment, then the new Act will give a tribunal the power to increase compensation by up to 25% where the employer has breached their new duties.
The new Act will also give powers to the Equality and Human Rights Commission (ECHR) to enforce the new duty. The ECHR will be able to:
- Carry out investigations when it suspects a person has committed an unlawful act
- Enter into binding agreements with a person, or employer to address ongoing issues of discrimination or harassment.
- Assist with or intervene in certain disputes.
The ECHR currently have published a Code of Practice to help employers manage claims of harassment in the workplace, as well as technical guidance. It is expected that these guides will be updated ready for the introduction of the new duty coming into force in October. The current ECHR guidance is available below:
- Sexual harassment and harassment at work: technical guidance
- Preventing sexual harassment at work: a guide for employers.
What will the changes mean for employers?
It is important for employers to anticipate and prepare for the changes the new law entails. Employers are advised to prepare for these forthcoming modifications to ensure compliance and, more importantly, to create safe and respectful work environments for all employees.
From October, employers will be expected to proactively establish measures that encompass reasonable steps in preventing sexual harassment.
The term ‘reasonable steps’ however, remains open to interpretation and as cases arise and case law develops, a clearer understanding of what constitutes reasonable steps may emerge.
This may not substantially alter the practices of employers who are already dedicated to upholding good employment practices, particularly in preventing discrimination and harassment.
Taking reasonable steps to protect your employees from harassment
The best way for employers to discharge their responsibility from the misconduct of their employees is to put appropriate measures in place to prevent sexual harassment from occurring in the first place. Whilst the new legal duty of taking reasonable steps to prevent sexual harassment is one aspect of, as a minimum, this should include:
- Risk assessments to identify risk factors
- Training
- Anti-harassment policies
- Clear reporting procedures
- Steps to prevent third party harassment
- The monitoring and review of your company practices when it comes to handling grievances and disciplinaries and having clear grievance and disciplinary policies
- Proper and thorough investigations without delay
- Taking appropriate action
- Developing a supportive culture
- Thoughtful event planning to mitigate risks.
How to protect employees from 3rd party harassment?
In terms of protections for employees from sexual harassment from third parties, the Equality Act 2010, and the forthcoming new duty amending it, does not include third party harassment, meaning there is no legal recourse at present under the Acts.
However, whilst the legislation does not provide an avenue for an employee to claim for this type of harassment, it does not have to be, and should not be ignored. Particularly for those employers where client interaction is a key part of the business and job role.
An Employment Tribunal will consider a client’s overall approach to preventing and dealing with sexual harassment when considering if a client has taken reasonable steps. There may be some circumstances therefore that by including protections from 3rd party harassment, they may count towards a client demonstrating they have taken reasonable steps.
Further information
Join our forthcoming webinar on 11 July, where we shall be expanding on this topic discussing how employers can protect their employees from harassment. You can register for our free event here.
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