An act of Parliament will introduce a new duty for employers regarding the prevention of sexual harassment in the workplace.
In this article we will look at what the change means for teachers and school leaders, as well as what isn’t changing yet.
The changes stem from 26 October 2023, when the Worker Protection (Amendment of Equality Act 2010) Bill received royal assent, becoming the Worker Protection (Amendment of Equality Act 2010) Act 2023. Its provisions are due to come into effect in October 2024.
What is the aim of new sexual harassment law?
The explanatory notes with the original bill put before Parliament explain that, despite the protections in the Equality Act 2010 against sexual harassment in the workplace, “persistent reports and revelations” have emerged in recent years indicating “that it remains a problem”.
Data from schools suggests that sexual harassment of teachers is a live issue. In a survey in Scotland by the NASUWT teaching union, published in August 2023, 94 per cent of respondents reported “receiving verbal abuse, including being sworn at, threatened with serious violence, including threats of being shot, and targeted with racial or sexual insults”.
November 2023 figures from the NASUWT’s behaviour in Scottish schools survey reveal that “22 per cent of female teachers said they experienced verbal abuse from pupils daily in the previous 12 months, compared to 11 per cent of male teachers”. The report adds that: “Female teachers described misogyny and sexism as being among the abuse that they are experiencing from pupils.”
The new duty
The act introduces a new provision into the Equality Act 2010 under which an employer must take reasonable steps to prevent sexual harassment of its employees in the course of their employment.
Once the act is in force, if an employee successfully raises a claim for sexual harassment for which an award of compensation is ordered, the employment tribunal will be required to consider whether, and to what extent, the employer has also contravened its duty to take reasonable steps to prevent sexual harassment of employees.
If the tribunal considers that there has been a failure to comply with this duty, it may order that the employer pay additional compensation: up to 25 per cent of the original compensation award.
This duty will apply to employers in the education sector, including local authorities and independent schools. For example, if a teacher is found to have been sexually harassed by a colleague, the tribunal will consider if this duty has been breached.
While there will not be a standalone right for employees to raise a claim arguing that the new duty has been breached, given there is no statutory cap on the level of compensation that can be awarded in a successful sexual harassment claim, any uplift in compensation could substantially increase the overall award.
The Equality and Human Rights Commission (EHRC) will be able to take enforcement action against an employer that is in breach of the duty.
Importantly, given the wording of the new provision, an employer that has taken reasonable steps to prevent sexual harassment while not taking every reasonable step available, can potentially avoid any uplift in the compensation.
What should schools look to do now?
The EHRC is producing a statutory code designed to support employers to comply with the new duty.
While the statutory code is not available yet, we already know from existing case law and guidance some of the reasonable steps employers can take.
These include: having a robust, up-to-date anti-harassment policy that deals with sexual harassment; regularly delivering effective anti-harassment training to the workforce that explicitly addresses sexual harassment; ensuring that employees know the process for raising any complaint about sexual harassment; dealing efficiently and appropriately with any complaints of sexual harassment; and if any complaints of sexual harassment are upheld, considering whether any wider measures need to be implemented in the workplace to mitigate the risk of reoccurrence.
To prepare for the implementation of the new duty, it would be prudent for school leaders to undertake an audit of the above now and to make any necessary improvements. Schools should involve relevant trade unions in this process.
What about third-party harassment?
The above NASUWT figures relate to harassment of teachers by pupils, but there have also been reports of unacceptable behaviour from parents.
In its original form, the bill dealt with third-party harassment, too, and would have made it easier for teachers to raise a claim against their employer where they had been subjected to third-party harassment by pupils or parents. These provisions were removed when the bill reached the House of Lords committee stage.
Consequently, the current position in respect of third-party harassment will remain once the act comes into force. Namely, there are no provisions in the Equality Act 2010 that expressly address harassment of employees by third parties (previous provisions were repealed).
Even so, teachers who are the subject of harassment by pupils or teachers may be able to resign and raise a successful claim for constructive unfair dismissal. The risk of a successful claim will likely be reduced where schools have taken steps to reduce the risk of third-party harassment occurring (for example, by producing a code of conduct for parents) and have then dealt appropriately if it has nevertheless happened.
Employers also have obligations in relation to the health and safety of their employees, such as a requirement to assess risks to their workers, including reasonably foreseeable risks of third-party violence.
The Labour Party’s employment rights green paper, A New Deal for Working People, states: “Labour will also require employers to create and maintain workplaces and working conditions free from harassment, including by third parties.” Therefore, if Labour wins the next general election, this issue may be revisited.
Nonetheless, while the act is not as far reaching as anticipated, school leaders should now be thinking about how to comply with the new duty.
Kate Sutherland is a senior associate in the employment team at Scottish law firm Harper Macleod
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