New duty on firms to prevent sexual harassment

It is worth drawing readers’ attention to the Worker Protection (Amendment of Equality Act 2010) Act 2023, which has just received royal assent. While as a private member’s bill it did not attract huge attention, it signals a major shift in sexual harassment laws, with very new responsibilities for employers.

Until now, while widely understood that sexual harassment in the workplace is unlawful, less immediately clear is how that actually gets enforced. There are no workplace sexual harassment police to stop it from happening, or to step in when it does. Instead, it normally falls upon arguably the worst-placed person to do so: the person actually being harassed – likely suffering from the shock of the experience and sadly often traumatic effects – to challenge the perpetrator. Someone who is in a situation probably already involving a power imbalance, often against an older male - senior, better-connected and financially resourced. They then have the burden to prove to others (to the civil standard if we’re in formal procedures or legal proceedings) not only that the conduct happened - generally without witnesses, out of sight - but also that it was unwanted.

Having their own interactions put under the microscope is a further horror to place upon someone who’s already suffering. The reality is most people in this situation would simply choose not to proceed. Having already endured something overwhelming, it’s entirely rational to choose to limit the damage by not taking it any further. Of course, this only makes it more likely it will happen again.

The new law seeks to move us from a culture of redress to one of prevention by creating a preventative duty: a requirement that employers take reasonable steps to prevent sexual harassment from happening to their employees in the course of their employment. In the same way that health and safety law works with workplace hazards that might pose a risk to staff wellbeing, the onus will now fall on the firm to prevent it from happening in the first place.

This means more than just having clear policies, training, and proper and impartial investigations into reported harassment, although these will of course be a given. Under the new laws, the Equalities and Human Rights Commission will be able to take enforcement action against firms who breach this duty, and businesses will be liable to individuals as part of wider sexual harassment claims at an employment tribunal. Compensation may be increased by 25% where employers are shown not to have taken reasonable steps.

I have practised in sexual harassment cases for over two decades now, in Australia as well as England and Wales, and am currently in Sydney. Although this preventative duty is entirely novel in the UK, Australia has been a little bit ahead of the curve here, with its own positive duty law passed last year. The format of the Australian law is a little different in that employers are required to address sex discrimination and victimisation as well as sexual harassment, but there is no mechanism to uplift compensation in individual cases if they have failed to do so. A year’s grace was also provided before enforcement by the Australian Human Rights Commission would commence, so as to allow lead-in time for employers to make the necessary changes to their workplaces, which isn’t provided for in the UK legislation. That means that the risks are already live here now, and so law firms who have not yet taken proactive steps to rid their workplaces of sexual harassment must immediately do so.

I would recommend commencing with a risk analysis approach. Very interesting research compiled in Australia has highlighted the key risk factors in workplace settings where sexual harassment is prevalent. These include many which commonly feature in legal practices, such as: male-dominated workplaces, especially at senior levels; a hierarchical structure; interactions with third parties (clients, barristers etc) at networking events, where alcohol features; and after-hours working. Thought should be given as to how to mitigate the risks arising in these settings, which will be different from workplace to workplace. Another key factor is how complaints are dealt with when people do raise concerns – being seen to have held people accountable is critically important. Unless problems are seen to be tackled, they won’t be raised, and in such environments, sexual harassment may thrive.

Having conducted the risk analysis, policy development and training are of course necessary steps, but it is important that this is specific to the workplace. Two firms’ cultures will be very different; a high street practice and a global law firm will have different risk factors and solutions.

How do you create a genuine speak-up culture that doesn’t simply pay lip service to the idea, but generates in junior employees the trust required for them to be prepared to act as an early warning system? That reassures them that there will be accountability following their complaint? One approach recommended in Australia is to engage with staff on these issues, drawing on their experiences and problem-solving suggestions. This can produce ideas that could fit the firm. It’s so important to have an open door during this period, it may prove to be the first opportunity to test out raising concerns, and any response will be critical to buy-in.

The preventative duty represents a major innovation to our equality laws, for the first time, flipping responsibility onto the firm to take action proactively, rather than to wait and see if any crisis emerges. That will require more than just a change in mindset – it needs care and attention, with an approach tailored to the individual organisation. The time is now.

Samantha Mangwana has practiced in sexual harassment cases in the UK and Australia and now leads on Strategy for byrne-dean