Keeping staff safe: New duty on schools to take reasonable steps to prevent workplace sexual harassment

On 26 October 2023, the Worker Protection (Amendment of Equality Act 2010) Act 2023 received royal assent and is set to come into force exactly one year later.

Earlier this year, we provided an overview of the proposed amendments to the Equality Act 2010 – via the Worker Protection (Amendment of Equality Act 2010) Bill (the bill) – and the likely impact on schools. At the time of drafting, the bill was set to make a notable change to discrimination law by:

• Re-introducing protection against harassment of employees by third parties. Initially, the bill sought to do this by making employers liable for compensation to employees in connection with any third-party harassment where the employer had not taken reasonably practicable steps to prevent it (including where that happened for the first time – unlike the ‘three strikes rule’ which was removed from the Equality Act 2010 in 2013)
• Placing a proactive duty on employers to take ‘all reasonable steps’ to prevent the sexual harassment of its employees in the course of their work.

However, during the legislative process, two key changes were made to the bill: firstly, the proposed third party harassment provisions were removed in their entirety; and secondly, the duty on employers to prevent sexual harassment was watered down. The impact of these changes is set out below.

Third party harassment

As noted above, the proposed provisions specifically allowing employees to bring claims against their employers relating to third party harassment did not survive the legislative journey. The reasons given for this decision included concerns about the cost to businesses, curtailment of free speech and excessive state intervention.

As a result, the law in this area will now remain unchanged – i.e., an employer will not be liable to an employee in the event of harassment by third parties.

Duty to prevent sexual harassment

As noted above, the bill was originally drafted to place a duty on employers to take ‘all reasonable steps’ to prevent sexual harassment of its employees in the course of their work. However, it was amended in the House of Lords to remove the word ‘all’ (essentially watering down the duty).

As a result, when the legislation comes into force in October 2024, employers will have a duty to take only ‘reasonable steps’ to protect employees against sexual harassment.

Whilst there is no mechanism within the legislation for individuals to bring a stand-alone claim that their employer has failed to comply with this duty, the Equality and Human Rights Commission (EHRC) can take enforcement action in such cases. The duty will likely become most relevant where an Employment Tribunal finds that an employee has been sexually harassed and awards compensation.

The Tribunal will then need to consider whether the employer has breached this new duty. If it finds that it has, it will have the power to increase any compensation given to an employee by an uplift of up to 25% (depending on the severity of the breach).

The scope of the positive duty is still somewhat unclear because there is no definition of ‘reasonable steps’ within the legislation. Before the duty comes into force, the EHRC will provide further guidance to ensure that employers understand what is expected of them to meet the threshold within the legislation. We expect this will include steps such as ensuring appropriate training for staff and adequate policies and procedures.

To be clear, this additional obligation applies to sexual harassment only and not harassment on grounds of other protected characteristics.

What does this mean for schools?

Employees already have the right not to suffer sexual harassment at work. However, from 26 October 2024, schools will have an additional, positive duty to take ‘reasonable steps’ to prevent the sexual harassment of their staff in the course of employment.

Many schools are likely to already take positive steps to reduce the risk of harassment within the workplace. However, in preparation for the change, schools should consider acting now, which may include the following:

• Identifying the risk of harassment in the different roles across the school
• Considering, perhaps in conjunction with staff, whether there are any measures that could reasonably be taken to reduce the risk of sexual harassment
• Reviewing all relevant policies and procedures to ensure that they are updated in line with the new law
• Carrying out specific training for staff
• Establishing particular reporting lines so that employees feel confident to report cases of harassment
• Ensuring that there are processes in place to deal with complaints of this nature promptly and effectively.

We will of course keep schools updated when any further guidance is published by the EHRC.

If you have any queries regarding the new duty to take reasonable steps to prevent workplace sexual harassment and how it may affect your school, please contact Emma Cockett, or your usual contact in the team.