Sexual Harassment - Time for an Audit?

New legislation

In just over six months, on 26 October 2024, new legislation will come into force under the Worker Protection (Amendment of Equality Act 2010) Act 2023. This legislation creates a new obligation on employers to take “reasonable steps” to prevent sexual harassment of their employees in the course of their employment, not just by fellow employees but potentially also by third parties. These “reasonable steps” are not defined by the legislation, but it is important to note that this does not mirror the existing full defence to a harassment claim available to employers who have taken “all reasonable steps” to prevent harassment by their employees.

Furthermore, a breach of this new obligation will not, in and of itself, give rise to a claim against an employer. Additional liabilities will only arise if a Tribunal finds that an employer is liable for sexual harassment by its employees. In that case, if the employer is also found to have breached the new duty (by failing to take reasonable steps to prevent the sexual harassment),  the award of compensation made to the employee can be increased by up to 25%. Given the lack of a cap on such awards, this uplift has the potential to be very significant. The amount of the uplift must reflect the extent to which the Tribunal considers the employer has breached the new duty.

So, what does this mean for schools?

As highly regulated employers, schools will be familiar with the need to offer regular training and updates on compliance issues. If they are not already considered as such, training on anti-harassment and whistleblowing policies should be included in such regular training and updates.  

Step 1:

We recommend conducting an audit of any policies you have in place around anti-harassment, and whistleblowing, and ensuring what you have is up to date and covers all necessary areas, as well as complying with the legislation. We also recommend keeping a centralised log of harassment complaints, so that the school can clearly point to incidents which have been raised, and how they have been dealt with (much like a health and safety log). This will allow on-going monitoring to spot themes or particularly risky practices and for action to be taken to address them. Of course, the data protection implications of creating and maintaining this register will need to be worked through, for instance, employers will need to identify a lawful basis for processing this data and ensure any register can only be accessed on a ‘need-to-know’ basis and is appropriately secured.

Step 2:

Once your policies are in good shape, they should be circulated, and tailored training should be given to ensure employees understand what behaviour is unacceptable, and also what they can do if they are the victim of, or witness, such behaviour.

Step 3:

Robust action should be taken in response to allegations of sexual harassment. There are unlikely to be many justifiable reasons for not conducting a formal investigation into such allegations under your internal policies, and unlike disciplinaries and grievances, there is likely to be less sympathy from Tribunals in relation to attempts to resolve such complaints informally. Many regulated sectors have already been given guidance, or indeed, have requirements, to carry out a formal investigation in the face of such allegations, but this legislation makes this more ubiquitous, and adds a potentially costly burden if employers get it wrong.

The Equality and Human Rights Commission is expected to update its statutory Code of Practice and Technical Guidance to reflect the new duty, so schools will also need to build its recommendations into their policies and procedures.  

How can we help?

For further information on how we can support you with updating your policies and procedures, contact our Education team below.