From October, employers will be under a new, proactive duty to take reasonable steps to prevent sexual harassment. If an employer fails to comply, and subsequently loses a sexual harassment claim in the Employment Tribunal, the compensation awarded to the successful claimant could be increased by up to 25%. With compensation for harassment uncapped (and including often substantial awards for injury to feelings), this is a significant financial penalty. What do employers need to do to avoid it?
The EHRC's guidance makes it clear that employers need to assess the risk of harassment in their businesses carefully. This assessment should include the risk of harassment by customers, suppliers and other third parties, as well as by colleagues. Having identified the risks, employers should identify and put into place preventative measures such as training, reviewing and updating policies, and ensuring that complaint mechanisms are effective (including training managers to deal with complaints effectively). Addressing the risk of harassment by third parties may require more imaginative solutions, including measures to reduce lone working and communicating a zero tolerance policy to suppliers and customers. It may also be appropriate to include terms in supplier and customer contracts which enable the employer to exclude from its premises individuals who harass staff. Employers should also consider the risks of online harassment or via smartphone/other communication methods, as well as harassment which takes place in person.
Whether it's reasonable for an employer to put a particular measure in place will depend on the risk it's intended to address, how frequently that risk may arise (and how serious it is), how likely the step is to reduce the risk and the employer's size and resources. However, basic steps such as having mechanisms for dealing with incidents of harassment and regular training for staff will be expected of most (if not all) employers.
Interestingly, the 25% uplift will not only apply in cases where the employer's failure resulted in the successful claim - in theory any failure by the employer, coupled with a successful claim, could result in the uplift being applied to the claimant's compensation. Claimants in sexual harassment cases are likely to seek evidence of the employer's failure and will encourage the Employment Tribunal to hear wide-ranging evidence on this point. It remains to be seen what approach Tribunals will take to this aspect of the new duty.
Many employers will have some preventative measures in place already, but with the financial stakes considerably increased, they would be well advised to refresh their risk assessment, review those measures and consider if anything else is required.
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