Transcription

• Speaker #0

  Today in the Indicator HR and Employment Law podcast, we're discussing the introduction of a new criminal offence of sex-based harassment which came into force on 1 April 2026. This makes it a criminal offence to intentionally harass, alarm or distress a person because of their actual or presumed sex and will capture many instances of sexual harassment which currently fall short of the criminal offence of sexual assault. The criminal offence can be committed in either a public or a private place. This will include all public spaces, such as streets, parks and public transport, and private spaces such as shops, gyms, hospitality venues and workplaces. This also includes cars and other vehicles. There are two key elements to the offence. The first is intentionality. The perpetrator must have intended to cause harassment, alarm or distress due to the victim's actual or presumed sex. And the second is impact. The victim must have actually suffered harassment, alarm or distress. While the harassment must be conducted because of the victim's actual or presumed sex, it does not matter whether the perpetrator also carried out the conduct because of any other factor or for the purposes of sexual gratification. A person found guilty of this offence can be imprisoned for up to two years, be subject to a fine or both. While the offence has been principally introduced to address the sexual harassment of a person in a public space, such as on the street, on public transport, in a gym or at a hospitality venue, employers may wish to inform and educate their staff as to this new criminal offence as part of their duty to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. Further, while this new criminal offence is directed at the prosecution of individuals who have committed the offence, employers may nevertheless face claims or penalties if the offence happened in the workplace. For example, the victimised worker may be able to bring a claim for sexual harassment under the Equality Act 2010 for which the employer would be vicariously liable, or where a third party has committed an offence, the employer may have third party liability from October 2026 should this additional change be brought into force. In both instances, it may also be an indication that the employer has failed to take reasonable steps to prevent sexual harassment of their employees in the course of their employment which may result in a discretionary uplift to tribunal compensation of up to 25%, where there has been a successful claim of sexual harassment and or enforcement measures by the Equality and Human Rights Commission. Look out for further episodes in this series to stay up to date on all things HR and employment law related.