The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force on 26 October 2024, introducing a new duty for employers to take ‘reasonable steps’ to prevent sexual harassment at work. Accompanied by technical guidance issued by the Equality and Human Rights Commission (EHRC), employers will be obliged to take a much more hands-on approach than has been required to date. This blog provides an overview of the new duty, and details what employers should be doing to ensure they do not fall foul of the new law.
- It is a proactive and anticipatory preventative duty. The new duty requires all employers (regardless of their size, sector or circumstance) to take reasonable steps to prevent sexual harassment in the course of employment and is anticipatory. This means employers should not wait until an incident occurs before taking action. Instead, they must anticipate scenarios where sexual harassment is a risk and take action to prevent sexual harassment from taking place. If harassment has already occurred, the preventative duty means employers should take action to prevent it reoccurring.
- The duty extends to sexual harassment by third parties. While the legislation does not extend liability to employers for third party harassment, the EHRC’s technical guidance is explicit that the duty extends to preventing sexual harassment by third parties. This means employers must also take reasonable steps to prevent their workers from being subjected to sexual harassment by visitors, customers, clients or other third parties they may have contact with at work.
- The duty is not confined to preventing sexual harassment in the immediate workplace. The duty applies to preventing sexual harassment in the course of employment. This has a wide meaning and can extend beyond the place of work to include, for example, time working offsite, on a training course, conference or external meeting, and may include time when not actually working but nevertheless connected with work, such as a work social event. It is important that employers consider the risks of harassment arising in these contexts as well as the immediate workplace when assessing what steps can be taken to prevent issues arising.
- Reasonableness is key. Employers are expected to take reasonable steps to prevent sexual harassment, but what is reasonable will vary between employers and will depend on the specific risks which exist. The test of reasonableness is an objective one and factors such as the size of the employer, nature of the workforce, type of third party contact and the likelihood of contact with potential harassers is all relevant to whether steps will be considered reasonable or not. Employers may find it useful and beneficial to consult with staff and/or staff representative groups or trade unions where they exist, to consider the risks and steps which could be reasonably taken.
- Risk assessments are vital. Employers are expected to consider the risks, decide what steps are needed to reduce those risks, and implement those steps that are reasonable. This will involve a detailed and well-considered risk assessment anticipating all potential exposure to sexual harassment during the course of employment (including offsite and by third parties) and careful thought as to what can be done. Risk assessments should be revisited and updated regularly.
- Breach of the duty could be costly. There is no free-standing claim for breach of the preventive duty, but if a claimant succeeds with an employment tribunal (ET) claim of sexual harassment and is awarded compensation, the ET can award an uplift on that compensation of up to 25 per cent. As compensation for discrimination or harassment is uncapped, the financial consequence could be significant.
- Consequences of breach are not limited to monetary penalties. The EHRC can take enforcement action against employers where there has been a breach of the preventative duty, including harassment by third parties. The EHRC has powers to investigate the employer; issue an unlawful act notice if the investigation reveals breach; require the employer to prepare an action plan to remedy breach and avoid future breach; enter into a formal binding agreement with employer to prevent further unlawful acts; and/or ask the court for an injunction to restrain an employer from committing unlawful acts. Powers can be used where there is suspicion of non-compliance with the preventive duty, and there is no requirement for an incident to have occurred.
- Policies and procedures need to be in place and reviewed. Employers should ensure they have appropriate policies and procedures in place to deal with appropriate conduct, anti-bullying and harassment, and addressing concerns through grievance and disciplinary routes, and should ensure these are reviewed and updated to reflect the new duty. The policies should explain what sexual harassment is, be clear about expected standards of behaviour, detail what individuals should do if they experience or witness harassment (including third party harassment), and what they should do if concerns are raised to them.
- Regular training is important. Employers should arrange training on the new duty to raise awareness generally and ensure there is a planned programme of refresher training. Training should ensure staff understand what harassment is, what is and is not appropriate behaviour, what to do if they experience, witness or receive information about alleged harassment, and the potential consequences. It is important that training on the issues and the employer’s policies and procedures are not a ‘tick-box’ exercise but are tailored specifically to the business and the working environment. For example, issues of harassment may be very different in a factory setting to an office one, and several versions of the training may be needed across a company so that it can be adapted to different audiences.
- Establish clear reporting channels. Employers should have clear guidance and methods for reporting concerns, including anonymously, and then act appropriately on complaints received. Employers should investigate concerns and take appropriate disciplinary action if complaints are founded but should also respect confidentiality and protect the complainant from adverse consequences of raising concerns.
- Take responsibility. This new positive duty on employers requires accountability to be taken to address sexual harassment at work. The EHRC recommends having a designated lead for the risk assessment, an action plan and general compliance which would extend to ensuring policies, procedures, training, risk and the effectiveness of actions are kept under regular review.
- Harassment on other grounds. Although the new duty is limited to prevention of sexual harassment and does not extend to harassment on other grounds (such as race, religion, disability, age or sexual orientation), employers remain bound by existing equality and employment laws and may be vicariously liable for harassment committed by their employees. Proactive employers may want to consider applying the principles of the new duty more widely, an approach endorsed by the EHRC.