New duty to prevent sexual harassment will put the spotlight on schools and colleges

The new duty to prevent sexual harassment in the workplace, set out in the Worker Protection (Amendment of Equality Act 2010) Act 2023, comes into force on Saturday 26 October 2024. Schools and colleges have a lot to do to in a short space of time to address sexual harassment and sexism which appears to be rife in secondary education.

How big is the problem?

The sexism in schools survey published by Unison last month reveals that many schools and colleges have a mountain to climb. The survey revealed:  

• One in 10 female support staff in secondary schools has been sexually harassed, mainly by male pupils but also by colleagues
• One in seven have witnessed sexual harassment in the workplace within the past five years and one in four incidents took place in secondary schools (this is mainly committed by male pupils against female pupils but is also targeted at female members of staff)
• Two in five people who have experienced sexual harassment did not report what had happened to them to senior leaders because they felt that it's pointless to do so and that complaints are brushed off
• One in seven say that sexist language has been used against them in the last five years, and 7% said they witnessed this daily. Sexist language was often used between students, but also by staff and parents. In particular, female members of staff have been subjected to sexualised, objectifying, threatening or intimidatory language
• 15% of staff said that they had been verbally abused because of their sex or gender
• More than four in 10 didn't know if their school had a sexual harassment policy
• Two in five said that they would not know what to do if they witnessed something they believed to be sexist

The report includes some concerning examples of sexual harassment by colleagues and pupils.

How are staff protected against sexual harassment in the workplace?

Under the Equality Act 2010, workers are protected against sexual harassment and less favourable treatment because they have rejected, or submitted to, conduct of a sexual nature. The sexual conduct must be unwanted by the victim and violate their dignity or create an environment that is intimidating, hostile, degrading, humiliating or offensive to them. This is judged from the victim's perspective, and they will be protected provided their reaction is reasonable in all the circumstances. 

Sexual conduct can cover verbal, non-verbal or physical conduct including unwelcome sexual advances, touching, sexual assault, sexual jokes and displaying pornographic drawings or sending emails with material of sexual nature.

Employers are liable for their own acts of harassment and those carried out by their staff in the course of their employment unless they can show that they took all reasonable steps to prevent harassment or discrimination in accordance with s109 of the Equality Act. That aspect of the law is not changing.  

Although the government abandoned legislation that would have given workers a direct legal remedy against their employer if they were harassed by third parties, they do have some legal options available to them and may be able to bring proceedings against a school or college if they are sexually harassed by students or parents.

Public sector equality duty

Schools and colleges have an overarching equality duty which requires them, when exercising their functions to have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited under the Equality Act.

What is the new duty?

The new duty places an additional responsibility on employers to pro-actively prevent sexual harassment in their workplaces. However, it's not a standalone claim. An employment tribunal will only be able to consider whether an employer has breached the new duty once it has upheld an employee's claim for sexual harassment under s26 Equality Act. Once that threshold has been reached, the tribunal must consider whether the employer took “reasonable steps” to prevent it. 

The draft legislation originally required employers to take “all reasonable steps” to prevent sexual harassment but inclusion of the word “all” was dropped during the Bill's passage through parliament. This suggests that the threshold is lower than the that required under s109 and that it may be easier for employers to meet this test. 

Are there additional penalties if the tribunal decides that a school or college hasn't take reasonable steps to prevent sexual harassment? 

Yes. Any employer found by a tribunal to have breached the new duty, may be ordered to pay additional compensation to the successful employee of up to 25% of their award. 

The Equalities and Human Rights Commission (ECHR) also has the power to enforce the new duty by:

• Conducting investigations when it suspects that a person has committed an unlawful act
• Entering into binding agreements with persons or organisations in order to address ongoing issues of discrimination or harassment
• Assisting with or intervening in certain disputes

Is there any statutory guidance to help schools and colleges the new duty? 

Not yet. The ECHR has said that it will update its existing Technical Guidance: sexual harassment and harassment at work and its Employment Code of Practice to reflect the new duty. It will launch a six-week consultation in respect of changes to the technical guidance over the summer. We'll keep you posted about its progress on this. 

 The ECHR has also said that it will lead the campaign to prepare employers for their new duties and will consider whether to take regulatory action against employers who breach these.  

What steps should schools and colleges take to prevent sexual harassment of their staff? 

If the Unison survey is representative of the education sector, schools and colleges have a significant problem which extends beyond sexual harassment by colleagues.  

We recommend that you:

1. Find out how much of a problem this is in your school or college. Ask your staff questions about their experience: are they are being, or have been, sexually harassed by colleagues or by pupils or other third parties they come into contact with at work? How often does this happen? Have they reported it? If they did report it, did that resolve the issue? 

2. Once you have this information, find out if particular members of staff being targeted? Do they have common characteristics (such as their race, sex, age or status)? This information will help you to focus on immediate training needs. 

3. Introduce a system so that staff can quickly and easily report and record incidents.

4. Introduce or update your policy on sexual harassment. Your policy should: state that sexual harassment, harassment and victimisation are unlawful and won't be tolerated, explain that anyone who breaches this may be disciplined and could lose their job; state that aggravating factors such as an abuse of power of a junior colleague will be taken into account when deciding what appropriate disciplinary action to take; define sexual harassment and include clear examples which are relevant to your working environment (Unison's report contains a few you could use); set out an effective procedure for receiving and responding to complaints and address third party harassment (including that committed by students)

5. Ensure that your other policies interact well with the sexual harassment policy. For example, do the examples of misconduct and gross misconduct in your disciplinary policy match or cross reference the sexual harassment policy? Does your policy on the use of IT, communications and social media include appropriate warnings against online harassment and encourage staff to report incidents even if these take place on their personal devices? 

6. Deal with issues promptly, consistently and in line with your agreed approach

7. Monitor complaints and address specific issues via training and education

8. Evaluate your progress on a regular basis and adapt your training/education as appropriate

The ECHR also has a short guide to help employers prevent sexual harassment which makes similar points.

We can help

We have a suite of training options which will help you to prepare for the new duty to prevent sexual harassment. We can deliver a bespoke training session to your leadership team, or you can purchase one of our back to basics training modules for line managers which includes one on harassment. It's a legally accurate and engaging course which features clear explanations of the law, less obvious examples of sexual harassment and explains why “banter” often leads to harassment claims. 

For more information, please contact Gordon Rodham or Jenny Arrowsmith.

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