HR Insight: Protecting Employees from Harassment

Protecting Employees from Harassment: July 2024 Hot Topic

The safeguarding of employees from workplace harassment is a crucial responsibility for employers. This encompasses adherence to existing laws such as the Equality Act 2010 and the Protection from Harassment Act 1997, and upcoming changes, particularly regarding sexual harassment under the Equality Act. This article delves into the current legal framework, anticipated legislative changes, and steps employers can take to protect employees from harassment.

Current Harassment Laws

In the UK, harassment related to employment and connected to protected characteristics (age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation) is unlawful under the Equality Act 2010. Additionally, the Protection from Harassment Act 1997 provides both criminal and civil remedies against harassment, making it critical for employers to understand that individuals can face personal liability and criminal prosecution for harassment.

Employers also have statutory duties such as the duty of care, trust, confidence, and fidelity, which underpin employment contracts. Breaching these duties can lead to claims for breach of contract or constructive/unfair dismissal. Harassment claims can arise even if the harasser shares the same protected characteristic as the victim, emphasizing the importance of the victim's perception over the harasser's intention.

Harassment under the Equality Act 2010

The Equality Act defines harassment as unwanted conduct related to a protected characteristic that violates an individual’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment. This includes sexual harassment and conduct related to gender reassignment or sex. The Act covers a wide range of behaviors from jokes and banter to physical violence, whether persistent or isolated.

Crucially, the perception of the victim is paramount, and even unintended conduct can be deemed harassment. An employee need not be the direct target to file a complaint; witnessing harassment can also justify a claim if it affects their work dignity. Although marriage, civil partnership, pregnancy, and maternity are not explicitly covered under harassment, claims can still be made under direct discrimination based on sex.

Changes to the Equality Act 2010

From October 26, 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 will introduce a new duty for employers to take reasonable steps to prevent sexual harassment. This duty will be considered by tribunals only in conjunction with upheld sexual harassment claims. The amendment allows for compensation increases up to 25% for breaches and grants the Equality and Human Rights Commission (EHRC) powers to enforce the new duty, conduct investigations, and enter binding agreements to address harassment.

Implications for Employers

Employers must prepare for these changes to ensure compliance and foster safe, respectful workplaces. Implementing "reasonable steps" to prevent harassment is essential, though its precise definition will evolve through case law. Employers already committed to good practices will likely need minimal adjustments.

Reasonable Steps to Prevent Harassment

To meet their new obligations, employers should:

• Conduct risk assessments to identify potential harassment risks.
• Provide regular training on harassment prevention.
• Establish clear anti-harassment policies and reporting procedures.
• Monitor and review grievance and disciplinary practices.
• Conduct thorough investigations of harassment claims promptly.
• Foster a supportive workplace culture.
• Plan events thoughtfully to mitigate harassment risks.
• Third-Party Harassment
• The new duty does not extend to third-party harassment (e.g., from clients or customers). However, employers should still address it, especially in client-facing roles, as tribunals will consider overall efforts to prevent harassment when evaluating "reasonable steps."

By anticipating and implementing these measures, employers can better protect their employees, comply with legal requirements, and create a safer, more inclusive work environment.

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