Sexual harassment: Duty is anticipatory – it need not actually occur
Law firms will need to rethink their approach to alcohol at events as part of preparing for the new positive legal duty on employers to prevent sexual harassment in the workplace, which comes into force in October.
The warning that they need to be “proactive” about the change in the law came as the Equality and Human Rights Commission (EHRC) said it would have the power to take enforcement action against employers that fail to comply with the duty.
From 26 October, employers have to take “reasonable steps” to protect their workers from sexual harassment under the Worker Protection (Amendment of Equality Act 2010) Act 2023. The EHRC launched a consultation on the guidance for the new duty this week.
This made clear that it was an “anticipatory” duty, explaining: “Employers should not wait until an incident of sexual harassment has taken place before they take any action.
“The duty requires that employers should anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place…
“However, if an employer fails to take reasonable steps to comply with the preventative duty, there are consequences.
The EHRC stressed that the duty “does not depend upon an incident of sexual harassment taking place to be enforceable by us”.
Paul Bennett, partner at Bennett Briegal, which advises other law firms, said every practice needed to review their current policies and procedures on sexual harassment and train their whole workforce on the duty before it came.
They would then need to monitor the effectiveness of the preventative measures taken.
Mr Bennett said refresher training was “likely to be essential to managing the risk so this is a long-term commitment to law firms in the same way supervision and AML [anti-money laundering] training should be”.
Law firms would need to be proactive in managing teams and, because the new duty requires employers to prevent sexual harassment by third parties as well as their own workers, “the risk from third parties who may sexually harass such as clients, counsel and suppliers”.
Mr Bennett said he expected law firms to “rethink their events, invites to events and alcohol policies in light of the duty to prevent sexual harassment”.
Beth Hale, partner and general counsel at City employment and regulatory specialists CM Murray, said the new duty was “intended to move sexual harassment from being largely a litigation risk issue to an issue of organisational culture, requiring employers to take action in anticipation of issues arising rather than responding to them after the event”.
She said that, given the recent focus by the Solicitors Regulation Authority on law firm culture and sexual misconduct, and the introduction last year of the rule on treating colleagues fairly and with respect, “these issues should have been at the forefront of law firm leaders’ minds in any event”.
Ms Hale went on: “The regulatory focus may indeed have given law firms a head-start in ensuring compliance with the new duty.”
She said it was likely that proper consideration and implementation of the SRA rules would help to show compliance with the mandatory duty, but would not be sufficient.
“In addition to ensuring that the tone on these issues is set from the very top of the organisation, law firms should consider what action they can take in respect of particular risk areas, such as hierarchical structures, late-night high-pressure working and alcohol consumption at work events.”
In the consultation, the EHRC said employment tribunals would have the power to increase compensation awards for sexual harassment, which are unlimited, by up to 25% where an employer has failed to comply with the new duty.
There were “many different types of third parties that could sexually harass a worker”, such as customers, clients, service users, patients, friends and family of colleagues, delegates at a conference and members of the public.
Employers should “consider the risk of workers coming into contact with third parties in different situations, the risk of sexual harassment occurring in those situations, and take reasonable steps to prevent such harassment”.
The EHRC said that if an employer did not comply with the new preventative duty, it had the power to take enforcement action, including investigating an employer, entering into a legally binding agreement with an employer to prevent future unlawful acts, and obtaining an injunction to restrain an employer from committing them.
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