New legislation that received royal assent on 26 October 2023 will come into effect in October 2024 and will introduce an additional new duty on employers to take “reasonable steps” to prevent sexual harassment. The Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act), aims to fortify protections for workers against sexual harassment in the workplace.
In this alert, Partner Emma Bartlett and Trainee Solicitor Rachael Parker provide an overview of the legislation and practical tips for employers on how to ensure their practices effectively comply with the new requirements.
The Act
The act pivotally introduces a duty on employers to take “reasonable steps” to prevent sexual harassment of employees and will grant tribunals the power to award an uplift of 25% in compensation where an employer has failed to comply with this duty. It is important to note that failure to take these reasonable steps is not a stand-alone claim that an employee may bring. However, in instances where a claimant brings a multi-facetted claim for harassment that includes elements of sexual harassment the uplift can be applied to the entirety of the claims. Therefore, employers need to be aware of the potential effect this may have on the quantum of harassment claims.
The original private members bill proposed by Liberal Democrat party member, Wera Hobhouse MP was arguably significantly more onerous on employers; upon its passage through parliament the obligations on employers were significantly watered-down. The originally proposed wording required employers to take “all reasonable steps”. The House of Lords highlighted the limits of an employer’s powers to prevent offensive beliefs and discussions of their employees especially when outside the confines of the office space. The original bill also sought to reintroduce worker protection against harassment from third parties. This additional duty has been scrapped but it is important to note that existing legislation does make employers who fail to deal with complaints of third-party harassment liable.
Why is it necessary?
Sexual harassment in the workplace, in spite of the impactful #MeToo movement, is still an ever-prevalent issue throughout numerous sectors. Harassment remains a significant topic of conversation with a spate of new allegations arising regularly. In summer last year, MPs launched an inquiry into barriers faced by women in finance in particular. The Treasury Committee requested evidence from women in business to determine whether any progress has been made since 2018 when they last investigated this issue. The ”Sexism in the city inquiry” presented findings that whilst few women feel there have been steps made towards inclusivity many still feel there remains widespread misconduct and misogyny. The Treasury has concluded that efforts to tackle sexism in the city are moving at a “snails pace” and action is required.
A poll conducted by the Trade Union Congress found that almost 2 out of 3 women aged 25 to 34 have experienced, harassment at work. The poll was produced during the readings of the original Bill with the aim of bolstering awareness for the need for these changes.
Overall, though perhaps less demanding than the original proposed Bill, this duty will likely have a considerable effect on the way in which employers need to address prevention of sexual harassment and the repercussions should they get it wrong.
Practical tips for employers
In light of these forthcoming changes, employers must prepare to adapt their practices to comply with the new requirements effectively. What are considered “reasonable steps” remains to be seen though we expect the EHRC to provide guidance on this before the legislation comes into effect and urge employers to watch out for this guidance. Whilst we await further substantive guidance, we anticipate examples of changes employers could look to make include:
- Policies: Reviewing and where needed, updating relevant policies and ensuring these are robust in implementing this new duty. Also ensuring these are easily available to all staff
- Logging Reports: reviewing, record-logging and reporting procedures to ensure any complaints are properly logged and investigated in a manner compliant with data protection laws. It is recommended that a central record of reports is kept
- Training: providing regular, tailored training for staff at all levels of seniority. In particular, bystander training is recommended, ensuring those with managerial responsibilities are fully aware of this new obligation and feel empowered to address any inappropriate behaviour they witness or is reported to them. It is also important to keep a record of all training provided, to whom and when it was delivered. This may serve as evidence of reasonable preventive steps having been taken
- Ensure that any third parties who work with your employees are aware that sexual harassment is not tolerated
