From October 2024 there will be new legal duty on employers to take reasonable steps to prevent sexual harassment in the workplace.
The Worker Protection (Amendment of Equality Act 2010) Act 2023 follows an inquiry in 2018 by the Women and Equalities Committee into the extent of sexual harassment at work. The inquiry recommended existing laws were ‘beefed up’ to force employers to be more proactive about shielding workers from harm.
The legislation amends the provisions in the Equality Act 2010 to better protect employees from workplace harassment and sexual harassment, shifting the focus from ‘redress’ to ‘prevention’. It introduces a duty on employers to take proactive steps to prevent sexual harassment from occurring in the workplace, placing greater responsibility on them to make workplaces safer, and to take a robust approach to complaints of sexual harassment.
If employers fail to take reasonable steps to prevent sexual harassment, the Equality and Human Rights Commission (EHRC) can take enforcement steps. Also, where an employment tribunal has first upheld a claim for sexual harassment, it will have the discretion to award a ‘compensation uplift’ by increasing any compensation it awards for sexual harassment by up to 25%.
What the new duty means for employers
An employer is vicariously liable for discrimination, harassment (including sexual harassment) or victimisation committed by an employee in the course of employment, unless it can show it took all reasonable steps to prevent its employee from committing a particular discriminatory act. Reasonable steps might include having an equal opportunities policy or an anti-harassment and bullying policy. The employer must also take steps to implement the policies, such as providing sufficient and regular training to staff and managers as well as regular reviews of policies.
All employers should take action to comply with the new positive obligation to prevent sexual harassment. Beyond simply trying to avail themselves of the defence that they took reasonable steps to prevent harassment, many organisations will want to use this opportunity to support their female workforce and others who are particularly vulnerable.
Steps for employers to consider before October 2024
In order for employers to take the necessary proactive steps to prevent sexual harassment in the workplace, employers should consider implementing the following measures:
- Ensure there is a reporting register for complaints about all forms of harassment.
This will allow ongoing monitoring to spot themes or particularly risky practices and take action to address these. There are data protection implications of creating and maintaining such a register, for instance, employers will need to identify a lawful basis and ensure any register can only be accessed on a ‘need-to-know’ basis and is appropriately secured.
- Identify the risk of harassment in each set of roles and circumstances and thinking through specific measures to protect employees in each.
- Take employee-facing steps such as updating and re-circulating anti-harassment tailored training to help staff members avoid the threat of harassment, and to give those who witness harassment the means to safely intervene and/or report the incident.
- The EHRC’s guidance on sexual harassment and harassment at work contains steps employers should consider taking in order to prevent and deal with harassment at work. It is intended that the introduction of the new employer duty to take reasonable steps will be supported by the EHRC’s statutory Code of Practice on workplace harassment, which is due to be published in time for the Bill’s implementation.
- Although the amendments to the Bill in the House of Lords removed the duty to protect workers from third-party harassment, employers may still consider third-party facing steps like installing visible signs in areas where customers interact with staff members explaining that threats, violence and harassment will not be tolerated and providing a means for bystanders to report instances of staff harassment.
If you would like access to advice or need further guidance, please contact the Employment Team at Blaser Mills Law on +44 (0) 20 3814 2020 or email enquiries@blasermills.co.uk.