The Worker Protection (Amendment of Equality Act 2010) Act 2023
The Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force on 26 October 2024 and introduce a new positive duty on employers to take reasonable steps to prevent sexual harassment in the workplace.
Sexual harassment is defined in the Equality Act 2010 as unwanted conduct of a sexual nature which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Examples of what may amount to sexual harassment include making sexual comments or jokes, asking intrusive questions about someone’s sex life or touching someone against their will.
An employer must take reasonable steps to prevent sexual harassment of its workers before it occurs and, in the event that sexual harassment does occur, take action to try to prevent it from happening again. The duty does not however apply to harassment relating to any of the other protected characteristics under the Equality Act 2010, including sex.
As well as taking reasonable steps to prevent sexual harassment from other workers, the duty also extends to preventing sexual harassment from third parties including customers, service users and members of the public. However, it should be noted that at present an employer is not liable (i.e. legally responsible) for harassment by third parties.
In the event of a breach of the duty, or a suspected breach, the Equality and Human Rights Commission (EHRC) has enforcement powers which include the ability to investigate an employer and if the duty has been breached, to issue an unlawful act notice which would require the employer to put together an action plan setting out how it will prevent future breaches.
Until the duty is in force it remains to be seen how the Employment Tribunal will approach claims where it is alleged that an employer has breached the duty. Whether or not an employer has taken reasonable steps will depend on the facts of each case. The EHRC recently consulted on draft guidance [1] (which is expected to be finalised in September 2024) on the factors which may be relevant in determining whether a step is reasonable, which include the size of the employer, the nature of the workplace and the risks present in that workplace. The EHRC recommends that employers should have clear anti-harassment policies in place, which distinguish between different forms of harassment and which all workers are made aware of. Other reasonable steps may include proactively assessing risks in the workplace, providing training which should be regularly refreshed, and having clear processes in place to investigate allegations of sexual harassment.
Where a claimant succeeds in their claim for sexual harassment and the Employment Tribunal finds that there has been a breach of the duty, it has the power to increase any compensation awarded by up to 25%. The Tribunal will consider if and to what extent the employer has complied with the duty and any uplift awarded should reflect the extent of the breach. The power to increase compensation by up to 25% is however discretionary.
[1]https://www.equalityhumanrights.com/guidance/consultation-technical-guidance-sexual-harassment-and-harassment-work#new-guidance-section-the-preventative-duty