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The New Duty on Employers to Prevent Sexual Harassment
The Worker Protection (Amendment of Equality Act 2010) Act 2023) is coming into force in October 2024 and places a new duty on employers to take action to prevent sexual harassment in the workplace.
In summary, the new law:
- Introduces a duty on employers to take reasonable steps to prevent sexual harassment of their employees.
- Gives the Employment Tribunal power to uplift compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment.
This duty will apply to employers irrespective of the size of the business or the number of staff (although a tribunal will take the size and resources of an employer into account when assessing what is considered `reasonable’).
What Is Sexual Harassment?
Sexual harassment is defined in section 26(2) of the Equality Act 2010 as:
“unwanted conduct of a sexual nature that creates an intimidating, hostile, or offensive environment for the person on the receiving end and/or violates their dignity.”
There are a variety of incidents and behaviours that might constitute sexual harassment, but some obvious examples include:
- Making sexually suggestive comments.
- Altering a pornographic image by adding a picture of a colleague’s head, then sending it to other co-workers.
- Touching someone in an inappropriate or unwanted manner, e.g., pinching someone’s bottom.
The Employment Appeal Tribunal has held that what constitutes sexual harassment is subjective, and there does not need to be a series or number of incidents – a one-off incident may be enough to constitute harassment:
The law does also not require the potential victim to have made it clear in the past that the sexual conduct was unwanted. In Insitu Cleaning Co v Heads [1995] IRLR 4, the EAT stated that would-be harassers could not be allowed to “test the water” without consequence to see whether their conduct was objectionable to the receiver(s) if their behaviour is serious enough to reasonably constitute harassment.
What Is The New Duty On Employers?
Employers are required to take “reasonable steps” to prevent sexual harassment of workers in the course of their employment.
The current law already provides a defence to a harassment claim if the employer can show they have taken all reasonable steps to prevent sexual harassment from happening. However, the new law places a legal obligation on all employers to take proactive measures to prevent sexual harassment in the workplace.
It is important to note that this law does not only protect women but applies equally to people of all genders.
What Constitutes “Reasonable Steps”
There is no guidance on this in the new law. The employer’s defence in the Equality Act uses similar wording – that the employer took “all reasonable steps” to prevent the discrimination or harassment. The word “all” has been removed from the new legal duty, meaning this may be a lower threshold. However, employers should be aware that it is likely that Employment Tribunals will interpret the duty in a similar way to the employer’s defence under the Equality Act 2010.
Policies Alone Are Unlikely To Be Enough
A recent Employment Tribunal decision in Fischer v London United assessed what would be expected of an employer to make out the “all reasonable steps” defence. The employer in this case had appropriate policies in place, however, they had failed to take other steps such as keeping the policies up to date, making them available to all staff, and implementing regular training.
Compensation
A worker can only claim that the employer has breached this new duty of taking reasonable steps as part of a wider claim for sexual harassment. They cannot bring a free-standing claim.
If an employee succeeds in a claim for sexual harassment and the employer is found to have breached its duty to take reasonable steps to avoid the sexual harassment, the Employment Tribunal has discretion to uplift the compensation payable to the worker by up to 25%. Although this uplift can only be applied in a successful claim for sexual harassment, the uplift will apply to all of the compensation that has been awarded including that for any other type of harassment that has also been added as part of the tribunal claim. A failure to take reasonable steps’ therefore can become very costly for an employer.
What About Harassment Of Staff By Third Parties?
The new duty to take reasonable steps does not extend to taking steps to prevent third-party harassment. However, employers are still at risk of discrimination claims or claims of harassment itself if complaints from workers about harassment by third parties are ignored. Additionally, there is a significant risk of damage to reputation if an employer fails to prevent staff from being harassed at work.
What Next Steps Should Employers Take?
We recommend the following steps be taken over the coming months to comply with upcoming new legal duty to prevent:
- Have a separate sexual harassment policy detailing a non-exhaustive list of behaviour that might amount to sexual harassment and incorporating a speak up policy to ensure staff feel safe to report incidents of sexual harassment.
- Ensure your reporting systems for harassment incidents are fit for purpose and allow you to identify patterns, for example, a particular activity, such as a sales conference, which always results in harassment complaints. When creating the complaints register, make sure it complies with data protection rules.
- Update and roll out harassment training to all staff, ensuring line managers understand how to deal with complaints and employees know what constitutes harassment so they can avoid committing it.
- Place signs in areas where third parties such as customers, contractors, and suppliers encounter employees, stating that threats, violence, and harassment will not be tolerated.
- Conduct targeted risk assessments regarding situations or events where there may be a higher risk of sexual harassment and put in place measures to eliminate risks or mitigate them (if the former cannot be achieved).
To discuss any of the points raised in this article, please contact Dipti Shah or fill out the form below.
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We want you to WANT to be here – Employees Quietly Quitting
Employee engagement is a real concern for employers.
While it is probably not a new concept, there is now a label for employee disengagement and apathy known as ‘quietly quitting.’
This is a state where employees do the job they are employed to do with no problems or concerns however, they are emotionally detached from any ambitions for the company, its success, growth or development. They simply ‘clock in’ and ‘clock out.’
Why Are Employees Quietly Quitting?
You might wonder, what’s wrong with that? They’re doing the job and not causing any issues so why is this a problem?
Perhaps there isn’t, if as an employer, you have no sustainability goals for the company, do not wish to attract stakeholder investment, develop your brand or strive for larger market share.
With the digital age and an exponential increase in competition for market share, it is now more important than ever to have ‘buy in’ from employees so that they are committed to the aspirations and objectives of the company , wanting to want to be there and participate in its growth and success.
How Quiet Quitters Affect Long Term Business Goals
There is nothing to stop employees quietly quitting. As they would not be underperforming or misbehaving there would be little cause for HR intervention.
However, the quiet quitters pose a significant risk to employers by their failure to engage and participate in meeting the long-term goals of the business. Their stagnancy results in a lack of creative input, foresight and innovation.
It can also lead to low team morale where their disinterest waterfalls into the attitudes and behaviours of their teams perhaps even seeing enthusiastic individuals leave and move on to somewhere else.
How To Keep Your Employees Staying
Employers who want their employees to want to be there may give some consideration to the following:
- What are the values of the company and is this mirrored in the type of culture that exists?
- Are employees disengaged because they feel adrift from the mainland where decisions are made on assumptions of what employees want or need?
- How is employee appreciation expressed? If you want employee commitment and investment, how are you investing in them?
- How are you building trust with your employees? Employees who are emotionally invested will bring more to the table. Trust develops a good faith commitment and for the most part, people like to deliver their part of the bargain.
Rounding Up
Companies frequently spend thousands of pounds in developing brand image and in marketing their products and services. However, where there is a culture of quiet quitting inherent in the spine of the company, such investment is futile if your employees, who are the engine of the company, feel uninspired and unenthused to take relevant action towards achieving the company’s ambitions.
To discuss any of the points raised in this article, please contact Dipti Shah or fill in the form below.
Twitter vs Threads | Could Employment Restrictive Covenants Apply?
Elon Musk, the embattled CEO of Twitter is threatening to sue Meta, headed by Mark Zukerberg. Mr Musk alleges that Meta used Twitter’s trade secrets and intellectual property (IP) to build Threads as well as hiring dozens of ex-Twitter employees.
A letter sent by Alex Spiro, an outside lawyer for Mr Musk, alleges that Meta engaged in “systematic, wilful, and unlawful misappropriation of Twitter’s trade secrets and other intellectual property.”
We need to emphasise that this article discusses the law in England and Wales. American law is quite different, and it is beyond the scope (and perhaps usefulness) of this piece. In England and Wales, an employer can attempt to protect confidential information and trade secrets by having employees sign a restrictive covenant. They can also include a confidentiality clause within the company’s employment contracts.
What Is A Restrictive Covenant In An Employment Contract?
A restrictive covenant is a term in an employment contract that can restrict a former employee’s conduct after they have left your business. There are several types of restrictive covenants, including non-compete, non-solicitation, non-dealing, and non-poaching covenants.
Is A Restrictive Covenant Legally Enforceable?
If a claim to enforce a restrictive covenant is brought before the Court, it must have regard to the doctrine of `restraint of trade.’ This principle states that people should be free to follow their trade and use their skills without undue interference.
Any contractual term restricting an employee’s activities after termination is void for being in restraint of trade and contrary to public policy, unless the employer can show that:
- There is a legitimate interest that is appropriate to protect.
- The protection sought is reasonable having regard to the interests of the parties and the public interest.
The Court applies the following key principles in assessing and enforcing post-termination restrictive covenants:
- To be enforceable, a restrictive covenant must be designed to protect a genuine ownership interest of the employer.
- Post-termination restraints are enforceable if they are reasonable, having regard to the interests of the parties and the public interest. The question of reasonableness is at the point when the covenant was entered into, not in the light of subsequent events.
- Restrictive covenants having the sole aim of preventing competition are never upheld by the Court. A non-competition restriction must be designed to protect the employer’s confidential information, trade secrets, or customer connections and prevent the employee from obtaining an unfair advantage.
- Restrictions must be no wider than necessary.
Essentially, the Courts will not uphold a restrictive covenant that merely prevents an employee from accepting a position with a competitor or opening their own business in competition with their former employer. For it to be enforceable, there must be an advantage or asset that the employer aims to protect, for example, a client list, key staff members, or a particular innovation that makes their product or service unique.
How Can A Company Protect Confidential Information And Trade Secrets?
An employment contract can include the protection of confidential information during and after employment. A restrictive covenant can include restrictions on using confidential information and trade secrets after the employment has ended.
Such clauses can also be incorporated into commercial agreements with third parties that require access to information to undertake work assigned to them.
In addition to express clauses, all employment contracts contain an implied term that the employee will serve their employer with good faith and fidelity whilst in employment. This means whilst in employment, employees will not under an implied duty of good faith and fidelity, disclose such information to third parties or use it for their own gain.
Conclusion
Whether Elon Musk will actually launch a legal claim against Meta is debatable. He has in the past threatened legal action but not pursued further action. It would be surprising if Mr Zuckerberg’s extensive legal team had not run a risk assessment for potential lawsuits before employing ex-Twitter staff. They will have closely scrutinised Twitter employee’s employment contracts to assess the nature and extent of the confidentiality clauses and restrictive covenants and the extent to which any terms could be successfully enforced.
It may be worth mentioning that there has been a Government consultation regarding introducing a three month statutory limit on the length of non-compete clauses. As at the time of writing, there has been no update to the consultation findings.
In conclusion, the best way to protect your organisation’s confidential information and trade secrets during and after an employee has left your employment, is to have carefully drafted restrictive covenants in your employment contracts that will be enforceable in a court of law and/or review your existing terms to ensure you are not left exposed when a key employee leaves your company.
To find out how we can advise you on all matters relating to employment and commercial law, please call +44 (0)20 7908 2525 to make an appointment