The Worker Protection Act
The Worker Protection (Amendment of Equality Act 2010) Act has garnered much attention from employment lawyers and rightly so. The Act has been drafted so that if a claim is made, it will be dealt with in the Employment Tribunal (ET). Whilst this arena will consider the impact of this new legislation first, the legislation may also have an impact on civil work-related stress claims.
The Act introduces a new legislative duty on all employers to take reasonable steps to prevent sexual harassment of their employees in the workplace and marks a significant shift in obligation towards the employer in challenging inappropriate conduct.
The amended Act provides ETs with the power to uplift sexual harassment compensation by up to 25% when an employer is found to have breached this new duty to prevent this behaviour. A breach of the Act will not give rise to civil liability but that does not necessarily mean that this can be ignored when investigating a stress type claim where allegations include sexual harassment.
Civil work-related stress claims
Civil work-related stress claims arise in all forms but claims involving allegations of bullying and harassment are on the increase and frequently these allegations of harassment will be of a sexual nature.
Government research into Sexual Harassment in 2020, which led to these amendments to the Act, indicated that 72% of the UK population experienced at least one sexual harassment behaviour in the last 12 months; most common were unwelcome sexual jokes or comments, staring or looks.
When investigating stress claims, key documents are stress and/or harassment policies. Employers must be aware of their contents and evidence of adherence to their own polices is key to being able to defend a claim. This new Act gives employers the opportunity to review their existing policies and ensure employees are familiar with them. Crucially, employees should feel comfortable raising issues pertaining to sexual harassment. We know that complaints of sexual harassment can lead to costly settlements, high profile senior departures, expensive litigation, reputational damage and poor employee and customer relations so the aim of the Act is to prevent this.
When investigating a stress claim, ensuring that harassment policies are up to date and robust is vital. A strong defence will require evidence that complaints are acted upon quickly and effectively, that employees know who to report to, that all aspects of the complaint and investigation are documented and, if there is evidence of sexual harassment, that any perpetrators are appropriately dealt with. This will all involve a considerable amount of regular training and focus to root out a sexist workplace.
Going forward – stress claims
We cannot ignore what takes place in the ET due to the significant overlap between ET claims and civil work-related stress claims. Where there is a psychiatric injury arising from an act of discrimination, the ET has jurisdiction to make an award for personal injury. Therefore, employers should remember to ensure that their EL insurers are notified about ET claims where the claim involves an element of personal injury.
There are, however, few stress and/or harassment claims where the allegations are only of a sexual nature but a reminder that if the alleged harasser is the "controlling mind" of the policy, there's always some potential that the policy may not respond if the sexual harassment is deemed an intentional act. We have come across this situation with a sexual assault but it would not take much depending on the facts to see it being of relevance with sexual harassment.
It's unclear at the moment what impact this new legislation will have upon civil stress claims but, where there are allegations of sexual harassment, it is likely we will see reliance upon this Act as evidence of negligence in the future and see claims with a greater focus on sexual harassment. As we have known about this Act for some time, employers will have limited excuses if they have not taken steps to prevent this behaviour.
Stress claims tend to be emotive to all concerned, particularly when there are allegations of harassment, and will always require sensitive handling. The claimant will invariably have some mental health issues and will be alleging that what took place at work has caused their illness. Whether the claim is about workload, bullying, harassment - sexual or otherwise - or a combination of them, the allegations will be made against, usually, former colleagues and/or managers, and it becomes very personal.
This new Act will add another layer of complexity to the investigation of these claims where sexual harassment is a component as, if an insured cannot show compliance with this new Act, it will make it more difficult to defend breach….but we always have causation.
Will we see an increase in allegations of sexual harassment in stress claims as a result of this Act? We suspect it will not take too long to find out. In the meantime, if you require any support or advice regarding these types of claim, please do get in touch.
