On 26 October 2024, the new Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force.
The Act introduces a new positive legal obligation on employers to take reasonable steps to protect their workers from sexual harassment.
The proposed changes
Employers will be subject to a new duty to proactively prevent sexual harassment of their employees "in the course of employment". This protection applies to behaviour beyond the physical workplace and extends the protection to incidents that occur during work-related events. Examples may include office parties, work conferences and networking events.
However, this new duty only applies to direct sexual harassment and does not extend to either:
- Less favourable treatment of a worker because they have rejected or submitted to sexual harassment; or
- Harassment of a worker related to any protected characteristic - including sex-based harassment which is not of a sexual nature.
"Reasonable steps"
The Equality and Human Rights Commission (EHRC) has published draft guidance on the proposed changes. In particular, the EHRC has provided clarity on the definition of "reasonable steps" by stating the following:
- What is reasonable will vary from employer to employer and will depend on factors such as (but not limited to) the employer's size, the sector it operates in, the working environment and its resources.
- There are no particular criteria or minimum standards an employer must meet. Different employers may prevent sexual harassment in different ways, but no employer is exempt from the sexual harassment preventative duty.
- Whether or not an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances of each situation.
Consequences of non-compliance
Employers must be aware that if this new duty is breached, the EHRC reserves the right and power to investigate employers and to take enforcement action against them.
In addition, the Employment Tribunal reserves the right to increase compensation for a successful claim of sexual harassment by up to 25%.
Pre-existing protection against sexual harassment
The Equality Act 2010 is the main source of legal protection against sexual harassment in the workplace. Section 26 prohibits both sexual harassment and any less favourable treatment because an employee has rejected or submitted to conduct of a sexual nature. For the purposes of the 2010 Act, it does not matter if the unwanted conduct is not intended to cause distress as long as it has the effect of violating a person's dignity or creating an offensive environment.
In addition, whether unwanted conduct violates a person's dignity or creates an offensive environment depends on the victim's perspective and whether their reaction is reasonable in all circumstances.
Despite this protection, a report by the EHRC concluded that the existing legislation is insufficient to protect workers from sexual harassment, which ultimately was the catalyst for the introduction of the new Worker Protection (Amendment of Equality Act 2010) Act 2023.
This new Act will work alongside the pre-existing protection, as an Employment Tribunal will only be able to consider whether an employer has breached this new duty once it has upheld an employee's claim for sexual harassment under section 26 of the Equality Act 2010.
It is important to note that whilst the new duty under the Worker Protection (Amendment of Equality Act 2010) appears to extend taking reasonable steps to prevent sexual harassment by third parties, an employee cannot bring a claim under section 26 of the Equality Act 2010 if they are harassed by a third party at work.
It will be interesting to see how this new protection will be implemented in practice. There is suggestion that the government has indicated that it is committed to reintroducing protection against third-party harassment and, therefore, may amend the current provisions of the Equality Act 2010.
What do employers need to do?
Employers need to be prepared for the new Worker Protection (Amendment of Equality Act 2010) Act 2023 in advance of 26 October 2024. Recommended steps include:
- Create or update an anti-harassment policy and reporting procedure;
- Implement appropriate sexual harassment training across the business;
- Ensure that all complaints are properly investigated;
- Consider the risks of sexual harassment in the course of employment and consider what steps can be taken to reduce those risks reasonably.
