What will the new Worker Protection (Amendment of Equality Act 2010) Act 2023 mean for employers and sexual harassment in the workplace?
Hardly a week passes without a news story about alleged harassment in the workplace, with reported scandals rocking the CBI (Confederation of British Industry), McDonalds, Odey Asset Management and surgeons in the NHS to name a few. Following a report by the Women and Equalities Select Committee highlighting the extent of sexual harassment at work, the Worker Protection (Amendment of Equality Act 2010) Bill was introduced, which will require employers to do more to tackle the issue of sexual harassment. Despite existing legislative protections, sexual harassment remains widespread.
The Worker Protection (Amendment of Equality Act 2010) Act 2023 received Royal Assent on 26 October 2023, and will come into force on 26 October 2024. It will apply to all employers and employees in the United Kingdom from that date onwards. In this newsletter, we take a look at the new, enhanced duties of employers to prevent harassment and what all employers should be doing to prepare themselves and their staff.
What is harassment?
Harassment is a form of discrimination. The Equality Act 2010 states that a person harasses another if they engage in unwanted conduct related to age, disability, gender reassignment, race, religion or belief, sex and sexual orientation which has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. ‘Sexual harassment’ involves engaging in unwanted conduct of a sexual nature, or less favourable treatment for rejecting or submitting to sexual harassment. It is important to note that a one-off incident can amount to harassment.
Can an employer be liable for harassment by its employees?
Yes, under existing legislation this is already the case. The Equality Act 2010 provides that anything done by an employee in the course of their employment is treated as having also been done by the employer. This means that an employer can be liable for (and therefore, be sued for) harassment, whether or not the harassment is done with its knowledge or approval. However, an employer has a defence if it can show that it took ‘all reasonable steps’ to prevent the employee from doing the discriminatory act.
What will change with The Worker Protection (Amendment of Equality Act 2010) Act?
The new legislation will introduce a proactive duty on all employers to take ‘reasonable steps’ to prevent the sexual harassment of employees. In other words, there will be a positive obligation on employers to take preventative action - not simply to rely on these steps as a defence to actual sexual harassment allegations.
What happens if an employer does not comply with this duty?
Under the new Act, an employer’s obligations may be enforced by the Equality and Human Rights Commission (EHRC).
The EHRC can issue an unlawful act notice relating to a breach of the duty and require the employer to comply. A new EHRC statutory code of practice on workplace harassment will also be published in due course.
An employee will not be able to bring a stand-alone employment tribunal claim relating to a breach of the duty to prevent sexual harassment. However, they can include this with a claim for alleged sexual harassment. In its defence, an employer will not be liable for a breach of the duty if it can demonstrate that it took ‘reasonable steps’ to prevent sexual harassment.
What if an employee succeeds in a sexual harassment claim and the tribunal finds that there was also a breach of the duty to prevent sexual harassment?
The tribunal may order an uplift in compensation of up to 25%. There is already no limit on the amount of compensation that can be awarded in discrimination cases, so these types of claims could prove to be even more costly for employers.
We already have anti-harassment policies in our staff handbook - isn’t this enough?
Certainly, all employers should have well-drafted and effective internal policies regarding sexual harassment, anti-harassment and bullying, equality and diversity and so on, which should be reviewed and updated annually. However, it is not enough to simply have written policies and procedures in place because:
- All staff should be trained on what forms harassment can take, how it might manifest, and what responsibilities they have to prevent it both as employees and, where relevant, as line managers;
- accurate training records should be maintained so that employers can demonstrate when training was delivered and to whom;
- there should be clear reporting mechanisms in place so that employees know how and to whom they can report allegations of harassment; and
- we strongly recommend that all senior managers who may receive or investigate grievances should receive specific training on how to deal with such allegations and how to carry out thorough, impartial, investigations to reduce the risk of a successful legal claim.
This new preventative duty must be taken seriously by all employers if they wish to avoid complex, expensive, time-consuming litigation from sexual harassment allegations. Aside from affecting morale and productivity, the reputational damage of such allegations can be significant.
How 3CS can help
Our Employment and HR teams provide bespoke training on all aspects of discrimination law, practical guidance on how to prevent sexual harassment in the workplace, and how to ensure sexual harassment complaints are not mishandled.
Please get in touch with your usual 3CS contact for further details.
