Employer’s New Duty to Prevent Sexual Harassment
Legal Interns at Cole Khan - Adora Etunyi and Riana Manxhuka consider the new duty to prevent sexual harassment in the workplace and new powers in light of the amendments to the Equality Act 2010 which will come into force on 26 October 2024.
The Equality Act 2010 (the Act) has been amended by the Worker Protection (Amendment of Equality Act 2010) Act 2023 to impose a new duty on employers to protect workers from sexual harassment in the workplace. The provisions grants new powers to the Employment Tribunal and the Equality and Human Rights Commission (EHRC).
The new duty and powers will come into force on 26 October 2024.
What is Sexual Harassment?
Sexual harassment occurs when a person engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect of either violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. Examples of sexual harassment include sexual jokes or innuendos, inappropriate sexual touching, sending sexually explicit or implicit messages etc.
New Provisions in the Worker Protection (Amendment of Equality Act 2010) Act 2023
The new provisions aim to:
Impose a positive duty on employers to protect workers from sexual harassment in employment; and
Increase potential penalties if an employer fails to fulfil this duty.
What’s New?
The new provisions include:
A requirement for employers to take reasonable steps to prevent sexual harassment in the workplace (see details below).
Empowering the EHRC to take enforcement action when there is evidence of an organisation failing to take reasonable steps to prevent sexual harassment.
Allowing the Employment Tribunal to uplift compensation awards.
Reasonable Steps
Sexual harassment in the workplace is unlawful under the Act. Currently, an employer can be held liable for sexual harassment committed by its employees. However, an employer may have a defence if they can prove that they took “all reasonable steps” to prevent harassment.
Under the new section 40A of the Act, employers must now take proactive steps to prevent sexual harassment, rather than merely reacting after an incident occurs. This is a new preventative duty.
What Does “Take All Reasonable Steps” Mean?
This means the actions employers must take to prevent harassment.
The specific steps considered reasonable will depend on the size of the business and the nature of the work environment. However, this does not prevent employers from taking additional reasonable steps, such as assessing risks, identifying necessary actions, and regularly reviewing their processes. Examples include:
Assessing workplace risks related to harassment: Employers should review their existing risk management frameworks and identify measures to minimize risks.
Implementing clear anti-harassment policies: Employers should have a written policy that explicitly prohibits harassment, defines unacceptable behaviour, and explains how employees can report incidents.
Providing regular employee training: Ongoing anti-harassment training for both employers and employees is essential.
Investigating complaints promptly and impartially: Employers must investigate reports of harassment quickly, fairly, and without bias.
Additionally, the EHRC has published technical guidance to help employers understand their legal responsibilities and positive obligations, which could serve as a helpful framework.
The Equality and Human Rights Commission (EHRC)
The EHRC advised Parliament on the equality and human rights implications of the Act.
The EHRC will have the power to take enforcement action if an organization fails to take reasonable steps to prevent sexual harassment. This enforcement action does not depend on an incident of sexual harassment occurring.
The Employment Tribunal
The Employment Tribunal will have the power to award an uplift in compensation of up to 25% in successful sexual harassment claims, where it finds there has been a breach of the preventative duty.
Third-Party Harassment
The government had previously promised to introduce new legislation to protect workers from third-party harassment (from clients, customers, service users, etc.), but this proposal was abandoned in 2023.
Currently, there are no legal provisions requiring employers to prevent sexual harassment by third parties. However, under the new provisions, employers will breach the preventative duty if they fail to take reasonable steps to prevent sexual harassment by third parties.
Conclusion
The new provisions place a positive and proactive duty on employers to prevent sexual harassment in the workplace. However, there is some disappointment that earlier proposals requiring employers to take “all” reasonable steps and imposing formal duties regarding third-party harassment were abandoned.
Labour’s "New Deal for Working People" indicates that Labour may have plans to extend these protections to include harassment from third parties in the workplace, potentially formalizing this aspect of the duty.
There are concerns that employers could avoid liability by merely performing "tick-box" exercises, where more substantive efforts could be made to prevent harassment.