Sally Robertson, a barrister at Cloisters Chambers, provides an overview of a new statutory duty on employers regarding unwanted conduct of a sexual nature

Since 26 October this year, all employers, including schools, have a new statutory duty to address. The Worker Protection (Amendment of Equality Act 2010) Act 2023 inserts a new section 40A in the Equality Act 2010. Under section 40A:

• Employers must take reasonable steps to prevent sexual harassment of their employees in the course of employment.
• Sexual harassment means harassment of the kind described in section 26(2), that is, unwanted conduct of a sexual nature.

The duty is designed to transform workplace cultures. It requires a proactive approach, thinking about possible scenarios and taking reasonable steps to prevent such sexual harassment happening. An Acas working group last December found that even though the new law does not go far enough, employers were generally not ready and would need help preparing for the change. Transparency in measurement and reporting was seen as the best way to escalate and address the challenges involved in preventing harassment.

Coinciding with the new statutory duty coming into force, the Equality and Human Rights Commission (EHRC) has published its helpful ‘Employer 8-step guide: Preventing sexual harassment at work’, in addition to its earlier longer guide ‘Sexual harassment and harassment at work: technical guidance’. First published in 2020, it has been updated to address the new duty. Additionally, the National Education Union published a toolkit in April 2024 on preventing sexism and sexual harassment.

The EHRC’s suggested eight-step approach is to:

1. Develop an effective anti-harassment policy.
2. Engage staff – through open door policies, regular one-to-ones, surveys and exit interviews.
3. Assess risk and take steps to reduce it. As well as for the core workplace, assess the risks arising with any external activities, for example, on games trips and other school trips.
4. Reporting, including keeping centralised confidential records of all concerns raised, whether formal or informal. This helps identify trends you might otherwise miss.
5. Training, not just of managers and senior staff. Consider how to review the effectiveness of any training, and offer refresher sessions regularly.
6. Act immediately to resolve any harassment complaint, taking account of how the worker wants it resolved and respecting confidentiality. Always communicate the outcome to the complainant in a timely manner.
7. Treat third party harassment just as seriously as harassment by staff.
8. Monitor and evaluate actions.

On top of these steps, you should think about how you might most easily show any tribunal what steps you have taken. Document and keep an archive updated. If you password protect materials, ensure you can access those materials once the individuals responsible have left the school.

It cannot be emphasised enough that all of this requires an anticipatory and proactive approach, thinking about areas of potential risk and taking reasonable steps to prevent or minimise that risk. You shouldn’t wait for something to happen.

The duty is a continuing one, so should be revisited regularly to review whether any further steps might be reasonable. The EHRC emphasises there is no prescribed minimum on what must be done. The test is objective. All depends on context and what is reasonable in the particular circumstances.

The steps must also address prevention of sexual harassment of staff by third parties, including parents and pupils.

The duty applies not just to employees, but to workers who contract to do the work personally. In practice, many peripatetic staff will count as workers. It depends on the level of integration into the school’s offer to parents. For an illustration of the fine dividing lines between employee, worker and non-worker, see the ruling, published in 2019, in the case of Mrs V Scott v Chigwell School and Mr H Ebden. Although all claims were rejected, including those of harassment of a sexual nature, it represents a real-life practical exercise for considering what steps might have helped prevent the issues of potential sexual harassment both within the school and on school trips.

With the uncertainty over the dividing line between worker and someone in business on their own account (for whom the school is just another client), it may be safest to include all regular visitors to the school in your risk assessment.

Individual workers cannot take action to enforce the new duty. Only the Equality and Human Rights Commission has that power. However, where a tribunal claim alleges sexual harassment, employers will still have to address the new duty in defending the claim and show that the steps they took to prevent harassment of their employees were reasonable ones. That is because a new section 124A to the Act also requires tribunals to consider a compensation uplift of up to 25% of the amount of compensation awarded under the Act.

Although, ultimately, actually making a compensation uplift is in the tribunal’s discretion, consideration of the elements is mandatory.

If a tribunal orders compensation in respect of any acts of harassment, and those acts involve to any extent, unwanted conduct of a sexual nature, the tribunal must consider whether and to what extent the employer has contravened the duty to take reasonable steps to prevent harassment of employees. If satisfied the employer has breached the duty, the tribunal may order the employer to pay an uplift. If the tribunal exercises its discretion to make an uplift, the actual percentage chosen, or the amount of the uplift, must reflect the extent to which the employer has contravened the new duty to take reasonable steps to prevent sexual harassment.

As well as dealing with the preventative duty, on 10 October this year the Labour government published its Employment Rights Bill. Announced as a “once in a generation” overhaul of employment rights, it will include day-one rights on protection from unfair dismissal, on the right to sick pay, maternity pay and parental leave. Probation periods will be limited to six months. Much will depend on the detail, including the timescale for implementation. In practice, having geared up to implement the statutory duty to prevent sexual harassment, it is suggested schools may find the overhaul of employment rights somewhat more straightforward.

Sally Robertson