Adam says employers need to take notice and recognise their new duty – it’s going to be enforced and employers ignoring the law could find themselves paying expensive awards made against them.

SEXUAL harassment in the workplace – against employees and third parties – has been an issue for some time with countless cases being reported in the media, cases that have involved some high-profile individuals. Indeed, most recently there have been the allegations against the late Harrods owner, Mohamed Al-Fayed.

But beyond the rich and famous are a multitude of instances of ‘sex-based’ cases elsewhere – including within the flooring sector.

In January 2022, the Asian Standard wrote of a carpet fitter, Shamoon Arshad, from Heaton, who was jailed for 12 months after he groped a woman while they moved furniture around her home1.
As the case detailed, Arshad had been at the woman’s home to measure up and lay carpets when he asked her to help him move furniture around upstairs. While doing so, he took several items of her underwear out of a drawer and made sexualised comments towards her. He then held her by the shoulders and offered to massage her before trying to kiss her, pinning her against the wall and grabbing her breasts.

And in March 2023, the Slough and South Bucks Observer reported on a carpet fitter who was charged with sexual assault of a young girl who lived in the house he was working in. Parvinder Singh, of Havelock Road, Southall, was found guilty at Reading Crown Court with one count of ‘intentionally touching a woman aged 16 or over and that touching was sexual when she did not consent, and you did not reasonably believe that she was consenting’.2 The sentencing outcome is not available.

There are allegations of harassment and discrimination (along with other claims) in the sector workplace too – in the Employment Tribunals.

In Mr M Kingdon v Designer Flooring Ltd (2019), the employer was ordered to pay £16,3083 , while in Ms C Wilde v Flair Flooring Supplies Ltd (2023), a finding of disability discrimination proven. No more detail is available.4

If all of this is happening ‘in public’ it’s a fair bet that sexual harassment is occurring in the workplace as well – and that should be of concern to employers in the sector.

Of course, many will have a tried-and-tested approach to dealing with workplace sexual harassment. This is likely to involve staff training, the maintenance of up-to-date policy documentation, and an approach to ensuring issues are dealt with robustly when they arise.
However, regardless of employer actions, since 26 October (2024), they have a new duty under the Worker Protection (Amendment of Equality Act 2010) Act 2023 to take ‘reasonable steps’ to prevent the sexual harassment of staff at work. Those that fail to take such steps risk a compensation uplift of up to 25 percent in the event of a successful claim against them.

As an Equality and Human Rights Commission (EHRC) spokesman told CFJ, ‘evidence shows workplace sexual harassment remains widespread, often goes unreported, and is inadequately addressed by employers’.

The spokesman added that the EHRC considers the Act ‘an important part of protecting employees in the workplace’ because it places ‘a proactive duty on employers to take all reasonable steps to prevent sexual harassment in the workplace’.

In anticipation of the new duty, employers wondered whether their existing approach to the management of workplace sexual harassment was sufficient to comply. The answer is that in many cases, they needed to do more.

But determining what constitutes ‘reasonable steps’ for an employer will depend on individual circumstances.

For Gareth Edwards, a partner in the employment team at VWV, factors such as the employer’s size, the sector in which it operates, and the way it identifies and manages risks are all likely to be material. As he says, ‘employers should reflect on their current sexual harassment strategy and make improvements where necessary’.

He highly recommends making contemporaneous records to explain an employer’s strategy and approach over time as ‘this ensures appropriate evidence can be presented to a tribunal in the event of a future claim’.

There is help from the EHRC which said that ‘to support employers, have updated our technical guidance on sexual harassment to reflect the new duty’. This information is on its website.5

New mandatory duty
In overview, Edwards says the act introduces a mandatory duty on employers to take ‘reasonable steps’ to prevent sexual harassment of employees in the course of their employment. ‘The mandatory duty is a much broader duty than any other obligation existing under existing anti-harassment law; the question of what will constitute ‘reasonable steps’ for any individual employer merits careful consideration and will depend on factors such as the type of organisation and the harassment risks that are present at that workplace.’

Changing defence
Employers might be aware that under the law, there is a potential defence available to employers facing harassment claims, where they can show they took ‘all reasonable steps’ to prevent the employee from carrying out the harassment. On this Edwards comments that ‘where the reasonable steps defence succeeds, the employer will escape liability, leaving the harasser potentially personally liable if they have been named as a respondent in the litigation’.

He adds, though, that ‘the new mandatory duty is different from the existing reasonable steps defence. The reasonable steps defence applies in a much narrower context, ie in demonstrating that an employer took necessary action to prevent a particular employee from displaying a particular behaviour’.

He says that in contrast, the mandatory duty will apply on an organisation-wide basis to all employees and is likely to call into question the employer’s culture and approach more generally.

Third-party harassment
Employers should note that although explicit third-party harassment provisions were removed from the Act, the new mandatory duty still encompasses a requirement to manage the risk of third-party harassment where relevant. Again, Edwards warns that the requirements of any given employer will depend on the particular risk of staff being exposed to third-party harassment at work. As a result, he says that employers should ‘consider the risk of third-party harassment as part of the general requirement to comply with the mandatory duty’.

Enforcement
As to how the new mandatory duty will be enforced, either the employment tribunal may apply a compensation uplift of up to 25 percent for breach of the mandatory duty in successful sexual harassment claims, or the EHRC will be able to take direct enforcement action against employers who breach the mandatory duty.

On this the EHRC spokesman said, ‘we will take enforcement action where necessary, including against companies who have failed to take reasonable steps to protect their employees from sexual harassment.’

In terms of the compensation uplift, to pursue an employer for breach of the mandatory duty, an employee will need to bring a successful harassment claim under the Equality Act. If that claim succeeds, Edwards says that a tribunal may apply the compensation uplift at an appropriate percentage to reflect the extent to which the employer has breached the mandatory duty.

As he cautions, ‘a tribunal may be likely to apply the compensation uplift precisely because, for the claim to succeed in the first place, the employer will either have failed to invoke the reasonable steps defence or will have been unsuccessful in doing so. If an employer has failed in the reasonable steps defence, it is likely to also fail to show that it has complied with the mandatory duty.’

In real terms, the practical impact of the mandatory duty is likely to be a compensation uplift of up to 25% in almost any successful sexual harassment claim. Given that sexual harassment is a claim for which a tribunal has the power to award unlimited compensation, a failure to comply with the mandatory duty could prove very costly.

And some of the awards have been huge: One case in 2015 saw a claimant awarded £3.2m6 and another, in 2023, £360,0007 . The new law could make those awards 25% more costly for employers.

In the event of a breach, the EHRC can issue notices to employers in relation to their unlawful acts. A notice would require the employer to prepare a draft action plan setting out how it will remedy its breach. The EHRC may approve the plan or require improvements to be made to it. The EHRC takes enforcement action against individual employers rarely but may do so in the event of serious breaches of equality law.

Summary
Employers need to take notice and recognise their new duty. It’s going to be enforced and employers that ignore the law could find themselves paying expensive awards made against them.
Adam Bernstein is an independent columnist