Sally Sellwood: Hi, yeah, thanks Lutfur.
Yeah, so I'm Sally Sellwood. I work with Lutfur in the policy team at CIPD and I also work in the content team, making sure that all of our content is legally up to date. I am a qualified solicitor and as part of my background, I've spent time working in the public sector and in large organisations as an employment solicitor.
So, I'm going to do a kind of update about what the current position is on harassment and then move on to explain some of the changes. And so, I think there might be a kind of we can move it on a couple of slides.
The law around harassment is contained in the Equality Act 2010, sorry, the current position. So, harassment generally is defined in section 26 of the Equality Act, and it's prohibited in the workplace thanks to section 40. The employer must not harass an employee or a job applicant.
In the workplace context then we're looking at unwanted conduct relating to a relevant protected characteristic. Marital status and pregnancy and paternity aren't covered by harassment. The conduct, to be harassment, it must violate the employee's dignity or create an intimidating, hostile, degrading or offensive environment. Sexual harassment where the content is of a sexual nature is also covered as is unwanted conduct of a sexual nature which is related to sex or gender.
In considering whether behaviour is unlawful harassment, the perception of the person who's experienced the treatment is really important. You've also got to look at the other circumstances of the case and whether it is reasonable for the conduct to have had that effect.
In the context of harassment, under Section 40, there is the Section 109 defence in the Equality Act for an employer to argue that it took all reasonable steps to prevent the harassment. If it's argued successfully, an employer can kind of potentially separate itself out from the harassment carried out by one of its employees and kind of take away the vicarious liability element. So that then is the sort of legal obligations in relation to harassment around the protected characteristics themselves.
There's then the preventative duty which is contained in section 40 of the Equality Act. It's a relatively new duty and it relates to sexual harassment and that is a duty to take reasonable steps to prevent sexual harassment at the moment. It's enforceable by the Equality and Human Rights Commission, rather than being a standalone tribunal claim. But if an employer hasn't taken reasonable steps to prevent sexual harassment and there is a claim, then the tribunal can uplift the compensation.
So, what is changing? So as Lutfur has already mentioned, the changes happen on the 30th of October 2026. Section 40 is going to be expanded. So, as well as the existing duty that an employer must not harass an employee or a job applicant, we're going to have these new section 41A to 1C which requires an employer not to permit a third party to harass an employee. And that includes the all reasonable steps element that also relates to section 109. And this is a; sorry I'm getting ahead of myself and then as Lutfur again has said the preventative duty is going to be strengthened to take all reasonable steps to prevent sexual harassment and that is a significant kind of jump up.
So, moving on to the third-party harassment in a little bit more detail. New section 41A, the employer must not permit a third party to harass an employee in the course of their employment, and the liability will arise if the employer has failed to take all reasonable steps to prevent the third-party harassment.
So, this is kind of going to take a bit more deeper thinking to address in the context of harassment overall, a kind of two-pronged approach looking at who are the third parties and particular vulnerabilities in the workforce and how the interactions happen. So, in terms of the third parties, it's going to require a careful analysis of the relationships that the employer has and then how individual employees or teams interact with those third parties. In some cases, you're going to have contractual relationships with those third parties, or some element of control. So, it might be control over the premises where the interactions are taking place. But for some employers, there may be circumstances where the employees are going to be interacting with third parties in situations where there's literally no control.
So, I was thinking perhaps of delivery drivers, for example, who are going somewhere or engineers, phone engineers perhaps who are working alone and in somewhere where they're going to be open to the general public and there's no control that the employer can exert really. When you look then, once you've assessed who the third parties are and how those interactions take place, you're also going to have to look at your workforce, who has the contact with the third parties, how that contact takes place, particular vulnerabilities, and how to protect your workers proactively and then what are you doing to look after them if they do experience harassment by third parties. There's a lot of questions around this and I think Nina and Gareth later on are going to have some really important insights to share around this.
In terms then of the updated and strengthened duty in respect of preventing sexual harassment, as Lutfur said in the introduction, this is strengthening the preventative duty to take all reasonable steps. So, we're still a little bit in the dark about what these what all reasonable steps mean. There are a few kind of there are sort of some areas that we can take clues from.
So, for example, there's the Hunter and Lidl example. So that was a tribunal case in 2023 where a female employee complained of sexual harassment by a manager and the tribunal found in the employment tribunal claim that the employer hadn't taken all reasonable steps to prevent that sexual harassment. On the back of the tribunal decision, the Equality and Human Rights Commission intervened and entered into section 23 agreement with Lidl. So that's under the Equality Act 2006. where the supermarket agreed to carry out a number of steps to prevent sexual harassment. And I think the list of those steps is a good starting point for any employer.
So, the steps included staff surveys, developing systems to monitor and analyse informal complaints of sexual harassment, identifying ongoing risks to monitor the effectiveness of complaint handling. Reviewing sexual harassment complaints from a previous time period to assess trends and risks and arranging meetings with existing DE&I forums and continuing to monitor the risk assessments that they had around sexual harassment and ongoing updates of policy. So that's a good example and the Hunter and Lidl, there's quite a lot of information about that on the EHRC website.
And the other thing we could potentially look at is the Section 109 case law. One of the examples, the Campbell and Sheffield teaching hospital case. In that case, the tribunal decided that the NHS trust concern had in fact taken all reasonable steps to prevent the incident because the employee who'd carried out the harassment had regularly attended training, including induction about core values, and what was expected in the workplace. And he'd very recently attended training, which involved kind of engaging small focus groups. So, it wasn't passive training, it was quite active training. And the employer had also put a lot of signage up around the around the workplace, explaining what kind of accepted behaviours were. So again, that can give us some clues.
I think that the other thing to mention is that we are anticipating some regulations around this. So, the government said in its timeline that it's going to, well, it's got a power now and we are anticipating these evidence-based steps which employers are going to have to take to prevent sexual harassment. The government's been very clear that this will complement and not replace entirely the duty to take all reasonable steps. So, but it does mean that there will be some things that we know as employers we're going to have to do. But there will still be a gap as well between, these regulations coming into force and the new duty to take all reasonable steps actually coming into force at the end of October.
