New legislation will strengthen the protections available to employees from sexual harassment by other employees at work, by introducing a new duty on employers to take reasonable steps to prevent sexual harassment, creating a new risk area for employers.
There will be a corresponding new compensation uplift of up to 25%, for breach of the new employer's duty to prevent sexual harassment. Employees won't be able to bring a claim for breach of the duty as it won't be a standalone claim – but where their claim for sexual harassment succeeds, the Tribunal will then consider applying an uplift to any overall compensation awarded if it also considers there has been a breach of the new duty.
Updated Equality and Human Rights Commission (EHRC) technical guidance on Sexual harassment and harassment at work is awaited, which will reflect the new duty on employers. The EHRC intends to open a six-week consultation in early summer on the planned changes to its guidance.
Key Action Points for Human Resources and In-House Counsel
The new legislation shifts the focus from redress to prevention, adding to the onus on employers to take proactive steps. Taking proactive steps to prevent incidents of harassment and bullying arising will also help employers build a more inclusive workplace culture.
Failure to prepare for this new duty risks an increase in discrimination claims, which could lead to substantial compensation payouts and damaging publicity. This is particularly so in the wake of the #MeToo movement and increased government focus on Non-Disclosure Agreements (NDAs) which have led to heightened expectations of respectful workplace culture and a growing awareness among employees about discrimination rights.
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