Employers will have to take active steps to protect staff, says watchdog

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All UK employers will need to take active steps to protect their staff from sexual harassment by colleagues or clients under new guidance published on Thursday by the Equality and Human Rights Commission.

The preventive duty, set out in legislation that will take effect next month, means employers could face enforcement action by the EHRC or higher penalties at employment tribunals if they fail to take “reasonable steps” in line with their resources and the risks their workers face.

Baroness Kishwer Falkner, the EHRC’s chair, said sexual harassment remained “widespread and often under-reported”, adding that the watchdog would be monitoring compliance and would “not hesitate to take enforcement action where necessary”.

The issue of harassment at work has come under the spotlight following a slew of claims of sexual assault or rape against Mohamed Al Fayed, the late former owner of Harrods. Last week, a lawyer representing some of the alleged victims accused the London department store of a “systematic failure of corporate responsibility” towards the women involved.

Employers are already liable for harassment committed by employees in the course of their work if they cannot show they took reasonable steps to prevent it.

But the guidance makes it clear that the new, proactive duty — which applies only to sexual harassment — also requires them to take action to prevent third party harassment by customers, clients and contractors.

It gives the example of a warehouse where customers sometimes collect orders on the premises. Managers aware that this had led to trouble in the past would need to address the risks of further incidents.

“It will be a big shift in culture,” said Lucy Lewis, a partner at the law firm Lewis Silkin, noting executives could no longer take a “helicopter overview” of the risks and remain removed from operational details.

The government has pledged to strengthen the duty on employers further in its overhaul of employment law, requiring them to take “all reasonable steps to stop sexual harassment before it starts”.

The EHRC said in its guidance that its view of what was reasonable would vary from employer to employer, although there would be no exemptions.

It gave one example of a large, male-dominated construction company with a culture of “crude banter” on client sites, and a staff survey showing female staff did not believe they would be taken seriously if they raised concerns about harassment.

A company in that position would be expected to take extensive action, including by training managers, bringing women into leadership positions, setting up anonymous reporting channels and meeting clients and contractors in person to ensure they understood the protocols.

A small, cash-strapped theatre company, whose workers were at risk of harassment from freelancers and audience members, would need to adopt a stringent, zero-tolerance approach, according to the guidance. But it would not be expected to spend unaffordable amounts on externally-provided training.

Darren Newman, an adviser on employment law, said in a blog last month that for most employers, the chances of the Equality Commission checking on their compliance with the duty were “as close to zero as makes no difference”.

“On the other hand, if I were the BBC, the Ministry of Defence or the Metropolitan Police I would regard a visit from the Commission as pretty much inevitable,” he said.

Newman said the changes could lead to a “significant” 25 per cent uplift in the compensation awarded by tribunals when people won a case against their employer over sexual harassment, as these claims would only succeed if the employer had failed in its preventive duty.