The Worker Protection (Amendment of Equality Act 2010) Act 2023 is coming into force on 26 October 2024, bringing in a new requirement for employers to take reasonable steps to prevent sexual harassment of employees in the course of their employment.
This sits alongside existing requirements for employers and was introduced following a report by the Equality and Human Rights Commission (EHRC), which concluded that the existing framework to protect workers from sexual harassment was insufficient.
Law
In summary, S26(2) Equality Act 2010 defines sexual harassment as a specific form of harassment which is “unwanted conduct of a sexual nature” which has the purpose or effect of either, violating a victim's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
From 26 October, employers have a duty to take reasonable steps to prevent such conduct. ‘Reasonable steps’ is a positive duty to take proactive measures in preventing sexual harassment.
The 2023 Act does not create a standalone claim that employees can bring to the Employment Tribunal (ET). Claims for breaches of duty will only be considered by the ET in cases where an employee’s claim for sexual harassment has been upheld.
However, S3 of the 2023 Act gives the ET power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached their duty to prevent it.
The EHRC will also have powers to enforce the new duty by investigating suspected unlawful acts by individuals or organisations. Whether or not an investigation has taken place, the EHRC can enter into a binding agreement with the person or organisation to address ongoing harassment.
How to prepare
- Measures to take to prepare for this new duty include:
- Investigating the extent of the problem within your workplace
- Aiming to create a culture of zero tolerance of sexual harassment
- Considering creating a standalone anti-harassment policy and reporting procedure or updating your existing anti-harassment and bullying policy with specific provisions on sexual harassment, and clearly communicating this to workers
- Implementing, monitoring, and reviewing this policy and procedure regularly
- Carrying out appropriate training
Employers should also properly investigate any complaints and take action if wrongdoing is found. These steps will become particularly important once the duty is in place.
Our view
Rebecca Nally, Trainee Solicitor in our Employment team, comments:
“Sexual harassment is about power imbalances. This new legislation highlights the duty that employers must mitigate these imbalances and to protect their workers by making the workplace a safe and comfortable environment for everyone.
"Going forward, should sexual harassment occur, these protections increase risks for employers if the correct measures are not in place to prevent such conduct. Employers should therefore be mindful to implement policies, procedures, and training to avoid uplift in claims at the Employment Tribunal or enforcement action by the EHRC.
"The EHRC is expected to publish revised guidance on this duty in September, so employers can keep an eye out for that guidance to steer them in the right direction.”
