The Duty to prevent Sexual Harassment

On 26^th October 2024, the Equality Act 2010 (“EqA 2010”) was amended by The Worker Protection ( Amendment of Equality Act 2010) Act 2023 to provide for a new duty to prevent sexual harassment in the workplace.

What does that mean for Barristers’ Chambers and those who are responsible for the administration of them?

The position prior to 26^th  October 2024

 Prior to the coming into force of this new duty, an employee working in Chambers, could rely upon various legal mechanisms to protect them in the workplace from sexual harassment, defined by EqA 2010 as being, ‘unwanted conduct of a sexual nature’ which has the purpose or effect of violating ‘[the victim’s] dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for [that person]’.  In particular:

• There is the right to claim harassment under section 26 EqA 2010 in relation to any of the protected characteristics under that Act.
• There is also a discrete right to protection from sexual harassment as defined by section 26(2) EqA 2010 (as above).
• These two provisions manifested themselves in the workplace protection provided for by section 40(1) EqA 2010.
• Between 2010 and 2013, third party harassment was prohibited (in the workplace) by section 40(2) EqA 2010, however this was repealed.
• In addition, there is the important and often overlooked right under the Protection from Harassment Act 1997, which does not require there to be a protected characteristic, however the threshold for pursuing such a claim is considered to be higher than that under the EqA 2010.
• Finally, employees could also rely upon the contractual duties in place under their express and implied terms of the contracts of employment, in particular the duty to provide a safe working environment.

These provisions are still in place.

What has changed?

From 26 October 2024, Barristers’ Chambers in common with all other employers have a new proactive legal obligation to take reasonable steps to protect employees from sexual harassment.

This new obligation is enforceable by the Equality and Human Rights Commission who have been mandated a power to take action against non-compliant employers.

Whilst the new obligation does not equate to a standalone right that an employee could pursue in the Employment Tribunal, since an allegation of a specific instance of sexual harassment would have to be established under the EqA 2010, if it is found that the employer did not take all reasonable steps to protect the employee from any sexual harassment that is found by an Employment Tribunal to have taken place, then there is the right for the Tribunal to provide for an increase in the compensation payable to the affected employee by up to 25%. This is provided for by the new section 124A EqA 2010.

It is also important to note that the preventative duty imposed by this new provision applies only to sexual harassment as defined by section 26(2) EqA 2010. It does not provide protection for harassment related to another protected characteristic nor does apply to the specific circumstance where an employee is subjected to less favourable treatment for rejecting or submitting to unwanted conduct.

 The Employer’s responsibilities

 The employer’s responsibility is to take reasonable steps to prevent sexual harassment of its employees in the course of their employment by their own workers, as well as to prevent sexual harassment of those employees by third parties such as clients and contractors ( section 40A(1) EqA 2010).

The new duty is an anticipatory duty, and it is ongoing.   Employers should not wait for incidents to occur before taking action to prevent sexual harassment in the workplace. They must actively take steps to anticipate scenarios where harassment might occur and take practical steps to prevent it.  If, despite these measures, sexual harassment occurs, the employer should assess the position and take further steps to prevent any further sexual harassment.

The Equality and Human Rights Commission (“EHRC”) has recently published an eight-step guidance document that sets out what an employer should do in order to comply with the new duty. These steps are, in summary:

• Develop an effective anti-harassment
• Engage with the staff. This might involve 1:1 meetings, staff surveys and exit interviews, as well as ‘open door’ policies.
• Risk Assess and take steps to reduce risk in the workplace
• Reporting- which involves putting in place effective mechanisms to enable the reporting of instances of sexual harassment and record keeping of all concerns that are raised, whether formal or informal.
• Provide training should be provided to all employees, which involve the identification of conduct that could be sexual harassment in the workplace, what to do if they witness it and how to handle any complaints of harassment.
• What to do when a harassment complaint is made, this will involve immediate action to resolve the complaint, taking into account how the employee wants it to be resolved. This could also involve taking measures to protect a complainant from ongoing harassment or being victimized, as well as preventing
• Address harassment by third parties, which will involve the specific risk assessment of this type of risk
• Monitor and evaluate the actions taken in response to incidents of sexual harassment, near misses, and any perceived risks that might arise from informal and formal complaints data.

This guidance document is a summary of (and should be considered alongside) the EHRC’s “Sexual harassment and harassment at work: technical guidance” document which was updated to take into account the new duty under section 40A(1) EqA 2010.

The EHRC has also provided three guidance templates for shift workers in the hospitality sector, but which could be adapted to other types of working environments, including Barristers’ Chambers.  There is a checklist that sets out various prompts to enable the effective prevention, assessment, monitoring, reporting, recording of and addressing incidents of sexual harassment, a template action plan and monitoring logs.

As such, it is clear that by the publication of these guidance documents and templates,  the EHRC has set out the outline of the types of measures that are likely to be considered to be required in order for an employer to satisfy it, or a Tribunal, that all reasonable steps have been taken to prevent sexual harassment in the workplace.

 What does this mean for a Barristers’ Chambers?

The Bar Council’s Equality Team has published an article, “Stop it- the duty to prevent sexual harassment and what it means for the Bar” which relies heavily on the EHRC’s eight-step guidance document.  Additional points to note are:

• Alongside the duty to prevent sexual harassment under the EqA 2010, there are the regulatory requirements to not discriminate under Core Duty 8 and to report incidents of harassment to the Bar Standards Board as serious misconduct (this includes self-reporting).
• The Bar Council’s Ethics and Practice Hub contains various helpful templates, including a template anti-harassment policy which could be used as a guide to updating an existing policy;
• There is a Talk to Spot platform that enables persons working in and around the Bar to make an anonymous and confidential complaint about unacceptable behaviours, including unlawful harassment.

In addition to the points raised by the Bar Council Equality Team, other practical issues that Chambers might wish to consider include:

• Implementation of a zero-tolerance approach to sexual harassment.
• Provide for an internal anonymous and / or confidential means of reporting sexual harassment, e.g. via a form on the intranet.
• Updating the anti-harassment policy to reflect the new duty and to signpost methods of reporting sexual harassment (including via the Talk to Spot platform);
• Updating the relevant internal disciplinary and related policies to reflect the new duty and zero tolerance approach;
• The identification of Members of Chambers and staff who will be responsible for receiving, triaging and progressing reports of sexual harassment;
• Whether training will be delivered in person, online, or a combination of methods;
• Amendment of Chambers’ Constitution to align the rights and obligations under that document with the position applicable to employees (and pupils and squatters);
• Publication of the expected standards of behaviour, consistent with the zero-tolerance approach, and the sanction for non-compliance by internal and external parties. This might involve physical signage in Chambers, as well as online.

There is little doubt that the new duty to prevent sexual harassment involves a new mindset on the part of employers, including Barristers’ Chambers.  It is suggested that as long as a methodical and open-minded approach to compliance is adopted, there should be little to fear and much to gain in terms of ensuring a safe , secure and I dare say, happy working environment.

JULIAN ALLSOP
Guildhall Chambers
23 Broad Street
Bristol BS1 2HG