The Worker Protection (Amendment of Equality Act 2010) Act 2023 (the “Act”) comes into force in October 2024 and will impose a duty on employers to take reasonable steps to protect their employers from sexual harassment.
In this news alert, Partner and General Counsel Beth Hale and Trainee Solicitor Charlotte Dormon consider the potential impact of the new duty as well as the EHRC’s recently launched consultation on updated technical guidance on sexual harassment laws.
The Duty
From 26 October 2024, under the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the “Act”), all employers (irrespective of size) will be under a mandatory duty to take reasonable steps to prevent sexual harassment in the workplace. Failure to do so (or a suspected breach of this duty) will entitle the Equality and Human Rights Commission (“EHRC”) to investigate and take enforcement action against an employer, and may also in some circumstances result in an employment tribunal increasing compensation for successful claims by up to 25%.
The duty is intended to move sexual harassment from being largely a litigation risk issue to an issue of organisational culture, requiring employers to take proactive steps in anticipation of issues arising rather than responding to them after the event.
Prior to the obligation being implemented, the EHRC has initiated a consultation process in respect of draft updates to their technical guidance on sexual harassment in the workplace. Although the EHRC’s technical guidance does not legally bind employers, it is designed to clarify the upcoming duty and what is required of them. This proposed revised guidance enhances the technical advice provided in January 2020, which detailed the applicable sections of the Equality Act 2010.
The consultation period runs from 9 July 2024 – 6 August 2024, and is linked here.
What are employers required to do
The preventative duty will require employers to anticipate scenarios where sexual misconduct might occur and take reasonable steps to prevent sexual harassment by an employee or a third party.
The draft new guidance provides some examples of what may and may not constitute reasonable steps, but this will largely be left to the discretion of the employer. What is considered reasonable will vary depending on the size of the employer, industry, environment, and resources. In advance of the introduction of the new duty, employers should be carrying out risk assessments and address specific risk factors, including power dynamics, stressful late-night work, and drinking during company functions, in that assessment. Employers must not only implement strong policies and conduct comprehensive training but also promptly investigate and take effective disciplinary action if sexual harassment concerns do arise. Employers must ensure that the tone on eradicating sexual harassment at work is set from the very top of the organisation.
Powers of the EHRC and Employment Tribunals
If an employer fails in their duty, the EHRC will be entitled to take enforcement action. The EHRC can investigate an employer, issue an unlawful act notice, enter a formal agreement to prevent future unlawful acts, and apply to the court for a restraining order to prevent an employer from committing an unlawful act. None of these examples require an incident of sexual harassment to have taken place before they can be enforced.
Where compensation is awarded to an employee who has succeeded in a claim for sexual harassment, an employment tribunal can award additional compensation up to 25% (proportionate to the level of the breach) where it is satisfied that the preventative duty has been breached.
Focus on Sexual Harassment by Third Parties
The EHRC have highlighted the importance of preventing sexual harassment by third parties as part of the new duty. The original version of the Act sought to reintroduce a standalone claim for an individual who is harassed by third parties but this was removed before the Act was passed. This means that an individual who is sexually harassed by a third party such as a client or customer may not ordinarily take legal action under the Equality Act against their employer. However, this particular focus by the EHRC suggests that they are aware of this gap in protection and are likely to take enforcement action against employers even where no claim has been brought by an individual employee.
Commentary
The guidance usefully sets out the broad parameters of the duty. However, a huge amount of discretion on implementation is left to employers. The equivalent guidance in Australia (where a similar duty has been in place since 2023) is significantly more detailed and includes several helpful examples and suggestions for employers to consider.
It is also worth looking to the regulated professions for guidance on these issues. The Solicitors Regulation Authority (SRA), for example, has taken a very proactive approach to seeking to eradicate sexual misconduct and has published detailed guidance on their expectations. The SRA has even imposed a positive duty on managers in law firms to actively challenge unfair treatment including bullying and harassment (see here for more information). Employers who seek to impose a similar duty in their anti-harassment policies would be taking a useful step towards demonstrating compliance with the new duty.
If you have any questions in relation to the new duty or would like to discuss any particular points raised in this article, please contact Partner and General Counsel Beth Hale or Trainee Solicitor Charlotte Dormon.
