The Worker Protection (Amendment of Equality Act 2010) Act 2023 has received Royal Assent, and will come into force in October 2024.
This is an important piece of legislation when it comes to sex harassment in the workplace . Whilst being considered by the House of Lords, we covered key considerations in our blog here, in light of the duty on employers proposed.
The legislation amends the provisions in the 2010 Equality Act 2010 to better protect employees from workplace harassment and sexual harassment, shifting the focus from ‘redress’ to ‘prevention’. This means an employer would be liable for the harassment of employees by third parties in certain situations and introduces a positive duty on employers to prevent sexual harassment.
Interestingly, the initial proposal was that employers take all reasonable steps to prevent sex harassment in the workplace and this has now shifted to a broader duty. From next year all employers will be under a statutory duty to take reasonable steps to prevent sex harassment in the workplace. If employers fail to take reasonable steps to prevent sex harassment, then the Equality and Human Right Commission can take enforcement steps, plus any successful tribunal claim will be subject to a compensation uplift of up to 25%.
Currently, an employer is vicariously liable for discrimination, harassment (including sexual harassment) or victimisation committed by an employee in the course of employment, unless it can show it took all reasonable steps to prevent its employee from committing a particular discriminatory act. Reasonable steps taken might include having an equal opportunities policy or an anti-harassment and bullying policy. The employer must also have taken steps to implement the policies, such as providing sufficient and regular training to staff and managers as well as regular reviews of policies.
This new duty to prevent sexual harassment will be enforceable by an employment tribunal, where it has first upheld a claim for sexual harassment. A tribunal will have the discretion to award a ‘compensation uplift’ by increasing any compensation it awards for sexual harassment by up to 25%, where there has been a breach of the employer’s duty in sexual harassment cases. A 25% uplift could be considerable, bearing in mind that the average sex discrimination award in 2022 was £37,607.
All employers should take action to comply with the new positive obligation to prevent sexual harassment, and those with customer/third-party-facing employees ought to do the same in response to the re-introduction of liability for harassment by third parties. Beyond simply trying to avail themselves of the defence that they took reasonable steps to prevent harassment, many organisations will want to use this opportunity to support their female workforce and others who are particularly vulnerable.
Steps to consider as we approach October 2024:
- Ensuring there is a reporting register for complaints about all forms of harassment. This will allow ongoing monitoring to spot themes or particularly risky practices and take action to address these. Of course, the data protection implications of creating and maintaining this register will need to be worked through, for instance, employers will need to identify a lawful basis and ensure any register can only be accessed on a ‘need-to-know’ basis and is appropriately secured.
- Proactively identifying the risk of harassment in each set of roles and circumstances and thinking through specific measures to protect employees in each. This might sensibly involve consulting with representatives of relevant employees.
- Taking employee-facing steps like updating and re-circulating anti-harassment tailored training to help staff members avoid the threat of harassment, and to give those who witness harassment the means to safely intervene.
- Considering third-party facing steps like installing visible signs in areas where customers interact with staff members explaining that threats, violence and harassment will not be tolerated and providing a means for bystanders to report instances of staff harassment.
Guidance available in tackling harassment at work
The Equality and Human Rights Commission’s guidance on sexual harassment and harassment at work contains steps employers should consider taking in order to prevent and deal with harassment at work. It is intended that the introduction of the employer duty will be supported by the EHRC’s statutory Code of Practice on workplace harassment, which is due to be published in time for the Bill’s implementation.