Previously under UK law, taking ‘all reasonable steps’ to prevent harassment would act as a defence to a harassment claim. However, the new legislation enforces a proactive duty on employers to take ‘reasonable steps’ to prevent sexual harassment of their employees. Failure to do so will now have consequences. While this obligation only applies to sexual harassment, where the employer is found to have breached this obligation, it will result in an uplift of compensation by up to 25% for all of the compensation awarded for any type of harassment in the claim. This could therefore increase the cost of successful sexual harassment claims in the UK significantly.
The UK is not the only country adopting this approach. Australia also has recently introduced a positive duty, binding upon employers, to prevent sexual harassment and other types of gender-based harm under their Sex Discrimination Act. The duty in Australia extends further than just sexual harassment claims by requiring employers to ‘take reasonable and proportionate measures to eliminate, as far as possible’ sex discrimination, sexual harassment, victimisation, and conduct which subjects a person to a ‘hostile workplace environment’ based on their sex. The actions required for an employer to comply with the duty will depend, among other things, on the size of the business, its financial and other resources, and the cost and practicability of the elimination measures. Notably, the Australian Human Rights Commission also has new powers to monitor and enforce compliance with the positive duty, including powers to compel production of documents, and to pursue action in the courts in the event of employer non-compliance.
Similar prevention duties apply in Italy. The Civil Code initially stated that the employer is required to take actions to ‘protect the physical integrity and moral personality of their employees’, including protection against gender-related hostile conduct. This principle was subsequently strengthened by the Gender Equality Code. Employers are now expressly required to take all necessary measures aimed at preventing sexual harassment in the workplace (in agreement with Unions, if required). Failure to take those measures could result in the employer being held liable for any damage suffered by harassed employees, even if the employer was not aware that the harassment had taken place. Furthermore, sexual harassment in the workplace is now considered discrimination, giving harassed employees a further action against the employer, and providing protection from retaliation.
In light of what appears to be a developing trend towards more positive duties on employers in relation to sexual harassment in the workplace in these jurisdictions, we have set out in the sidebar the position in relation to other key jurisdictions for employers to bear in mind.
In addition, the following are some thoughts on what employers can be thinking about doing now to try and proactively prevent sexual harassment in the workplace:
- Updating and re-circulating anti-harassment and ‘speak up’ policies and ensuring that policies focus on inclusion as well as equality.
- Carrying out up-to-date, tailored and situational training to help staff members avoid the threat of harassment, and to give those who witness harassment (bystanders) the means to safely intervene or support victims. As discussed above, training which is ‘stale’ or simply a tick-box exercise is unlikely to be seen as a reasonable step to fulfil the positive duty to prevent harassment.
- Conducting targeted risk assessments to identify risk factors and what action can be taken.
- Ensuring there is a clear avenue for reporting complaints about harassment and that all complaints are investigated and dealt with effectively, even if they are historic ones.
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Enforcing a positive duty to prevent sexual harassment in the workplace
Previously under UK law, taking ‘all reasonable steps’ to prevent harassment would act as a defence to a harassment claim. However, the new legislation enforces a proactive duty on employers to take ‘reasonable steps’ to prevent sexual harassment of their employees. Failure to do so will now have consequences. While this obligation only applies to sexual harassment, where the employer is found to have breached this obligation, it will result in an uplift of compensation by up to 25% for all of the compensation awarded for any type of harassment in the claim. This could therefore increase the cost of successful sexual harassment claims in the UK significantly.
The UK is not the only country adopting this approach. Australia also has recently introduced a positive duty, binding upon employers, to prevent sexual harassment and other types of gender-based harm under their Sex Discrimination Act. The duty in Australia extends further than just sexual harassment claims by requiring employers to ‘take reasonable and proportionate measures to eliminate, as far as possible’ sex discrimination, sexual harassment, victimisation, and conduct which subjects a person to a ‘hostile workplace environment’ based on their sex. The actions required for an employer to comply with the duty will depend, among other things, on the size of the business, its financial and other resources, and the cost and practicability of the elimination measures. Notably, the Australian Human Rights Commission also has new powers to monitor and enforce compliance with the positive duty, including powers to compel production of documents, and to pursue action in the courts in the event of employer non-compliance.
Similar prevention duties apply in Italy. The Civil Code initially stated that the employer is required to take actions to ‘protect the physical integrity and moral personality of their employees’, including protection against gender-related hostile conduct. This principle was subsequently strengthened by the Gender Equality Code. Employers are now expressly required to take all necessary measures aimed at preventing sexual harassment in the workplace (in agreement with Unions, if required). Failure to take those measures could result in the employer being held liable for any damage suffered by harassed employees, even if the employer was not aware that the harassment had taken place. Furthermore, sexual harassment in the workplace is now considered discrimination, giving harassed employees a further action against the employer, and providing protection from retaliation.
In light of what appears to be a developing trend towards more positive duties on employers in relation to sexual harassment in the workplace in these jurisdictions, we have set out in the sidebar the position in relation to other key jurisdictions for employers to bear in mind.
In addition, the following are some thoughts on what employers can be thinking about doing now to try and proactively prevent sexual harassment in the workplace:
Is there protection against harassment based on a protected characteristic?
The view from other places.
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