Written by Brabners LLP
Introduction
On 26 October 2024, the law will impose a new duty on employers to prevent sexual harassment in the workplace.
The new duty applies to all employers, including employers of umbrella employees, regardless of the size of the organisation.
The current law
The law already makes employers vicariously liable for any sexual harassment carried out by their employees during work. Employers may, however, be able to defend this type of claim if they can prove that they took “all reasonable steps” to prevent such behaviour. This existing law encourages (but does not require) employers to take proactive measures to prevent sexual harassment from occurring in the workplace.
The new law
The new legislation imposes a positive obligation on employers to actively prevent sexual harassment by implementing reasonable preventive measures. The law will require employers to take “reasonable steps” to prevent harassment of a sexual nature against an employee in the course of their employment.
What is sexual harassment?
The law defines sexual harassment as “Unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”.
There is a degree of subjectivity with this definition, and the perception of the individual claiming sexual harassment has taken place will be considered.
What are “reasonable steps”?
The new law does not specifically define what constitutes “reasonable steps”, but the explanatory notes which sit alongside the new legislation suggest that reasonable steps will depend on “the specific circumstances of the employer, including its size and sector and other relevant facts. In most cases, the employer’s practices and procedures (e.g. grievance and reporting procedures) for preventing and dealing with sexual harassment are likely to be relevant”.
The Equality and Human Rights Commission (“EHRC”) is expected to release updated technical guidance this week specifying the steps that employers should take to prevent and respond to sexual harassment.
It is clear that what amounts to “reasonable steps” will vary depending on the circumstances. It is likely that the steps which an umbrella employer would be expected to take in relation to its permanent employees will be different (more stringent) than the steps it would reasonably be expected to take in relation to its umbrella employees, given that it will be much harder to prevent an umbrella employee from being harassed during the course of an assignment where the umbrella employer is not present and has no control over the end-client’s staff.
What steps can an umbrella company take to prevent sexual harassment?
- Conduct risk assessments to identify the risks, consider the steps which could be taken to mitigate such risks and then consider whether it is reasonable to take those steps in the circumstances.
- Complete due diligence on agencies by asking them to obtain and provide information and documentation on their end-clients’ training, policies and preventative measures.
- Include an express term in all contracts with agencies notifying them of your policy on harassment and requiring them to share this with end-clients and to comply with your requests for information. If possible, also include indemnities in respect of harassment by the end-client’s staff.
- Produce or update policies and procedures to clarify the law, set out expected behaviours and complaint mechanisms for umbrella employees and internal staff to follow. Draw attention to these policies as part of onboarding. It will not be enough to store such policies on a portal in the hope that they are read.
- Tailor policies and procedures to internal and umbrella employees, as well as to managers and non-managers. It may be appropriate to have separate policies for all these groups.
- Provide training to your internal staff to support them in dealing with complaints from umbrella employees and permanent staff. Consider whether certain staff members could become workplace champions to help raise awareness and provide support. Where online training is provided, ensure that it cannot be skipped, that there is a pass rate and seek to insert a quiz at the end to aid understanding. Wherever possible, it is worthwhile to undertake in-person training to maximise engagement.
- Have a clear timetable in place for refresher training once a year as a minimum.
- Whilst harassment by third parties is not yet directly covered under the law, it may be introduced in future legislation. Consequently, be aware of sexual harassment that could arise from relationships with third parties, including harassment by other agency workers on the end client’s premises as well as the client’s own employees.
- Encourage reporting of sexual harassment and ensure that any complaints raised are properly investigated.
- Be proactive – do not just act after an incident occurs!
Risks of getting it wrong
It goes without saying that no business would want one of their employees to suffer sexual harassment. Additionally, if harassment does occur, this could bring reputational risks as well as legal ones.
It is already the case that an employee (internal or umbrella) can bring a claim if they suffer sexual harassment at work. If an employer fails to properly implement the new duty to prevent sexual harassment, this will not give the affected employee the right to bring an additional free-standing claim regarding their employer’s breach of the duty. However, if the employee brings a sexual harassment claim and the Tribunal finds that their employer failed to take reasonable steps to prevent the harassment from occurring, then the Tribunal will have the power under the new law to increase the compensation payable to the employee by up to 25%.
Umbrella companies should therefore implement measures to comply with the new duty by no later than 26 October 2024.
This bulletin is for general guidance only and should not be used for any other purpose.
Brabners is a Limited Liability Partnership
