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Employer duty to prevent sexual harassment

View profile for Adam Pennington
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Employer duty to prevent sexual harassment

What will the Worker Protection (Amendment of Equality Act 2010) Act 2023 include?

The Worker Protection (Amendment of Equality Act 2010) Act 2023 received Royal Assent on 26th October 2023 and is due to come into force in October 2024. The legislation focuses on enhancing the protection of workers and placing new responsibilities on employers to take reasonable steps to prevent sexual harassment in the workplace. Employers must actively address and mitigate sexual harassment to create an appropriate and safe work environment.

Below we take a look at the key changes and the implications:

Does it extend to third parties?

Although the bill does not include a defined clause around third parties, it does use the broad phrase of sexual harassment “in the course of their employment”. This could be wide enough to include sexual harassment by third parties. That said it is not possible to bring a claim to an Employment Tribunal about this and it would need to be bought by the EHRC (Equality of Human Rights Commission).

New duty for employers reasonable steps versus all reasonable steps

The law already provides a defence to a harassment claim if the employer can show they had taken all reasonable steps to prevent it from happening. This meant it was advisable to take such steps, but there was no actual requirement to do so. The new law goes further by placing a separate legal obligation on all employers to take proactive measures to prevent sexual harassment.

The new duty only applies to sexual harassment. It does not apply to harassment based on other protected characteristics such as race, age, sexual orientation or belief. It also does not apply to harassment which is related to sex but is not conduct of a sexual nature.

Unfortunately there is no guidance as to what is meant by ‘reasonable steps’, however the Equality and Human Rights Commission (EHRC) has confirmed that its technical guidance on sexual harassment and harassment at work will be updated to reflect the new duty and give more definitive guidance.

Taking all reasonable steps typically included taking actions such as regularly reviewing equal opportunities policies, providing employee training, and effectively handling complaints following a complaints procedure.

The employer’s defence in the Equality Act uses similar wording – that the employer took “all reasonable steps” to prevent the discrimination or harassment. The word “all” was removed from the new duty during the parliamentary process, meaning this is a somewhat lower threshold. Nevertheless, it seems likely that Employment Tribunals will interpret this in a similar way to the existing employer’s defence.

Employment Tribunals and compensation uplift in relation to sexual harassment

Under the new act, if an employee succeeds in a claim for sexual harassment, and the employer is found to have breached its duty to take reasonable steps to avoid the sexual harassment, the Employment Tribunal will be able to uplift compensation by up to 25%.

For example, if the compensation award was £20,000 the Claimant may claim an additional 25% compensation of £5,000 meaning the employer would be liable to pay £25,000.

The new legislation has been introduced to encourage employers to take proactive steps to prevent sexual harassment in the workplace.

Enforcement of the act

The act conveys the Equality and Human Rights Commission (EHRC)  enforcement powers pertaining to the Act. These powers encompass the authority to conduct investigations regarding unlawful acts under the 2010 Act, issue notices of unlawful acts, devise action plans, or negotiate agreements with the individual responsible for the unlawful act. Additionally, the EHRC retains the capacity to seek injunctions against the organisation concerning the breach.

If you are facing a claim as an employer for sexual harassment, or require assistance in updating your policies and procedures, or you are an employee and think you have been subjected to sexual harassment call our employment team today on 0161 696 6170.

Download sexual harassment in the workplace infographic as PDF