A New Duty On Employers To Prevent Sexual Harassment – What Do Employers Need To Know?

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A New Duty On Employers To Prevent Sexual Harassment – What Do Employers Need To Know?

Author: Beth Gilbert

Key Contact: Claire Knowles

The Worker Protection (Amendment of Equality Act 2010) Act 2023 (the “Act”) received Royal Assent on 26 October 2023. The Act makes significant changes in relation to sexual harassment in the workplace.

What are the changes?

  1. A new duty on employers to take reasonable steps to prevent sexual harassment (i.e., unwanted conduct of a sexual nature as defined in the Equality Act 2010) of their employees in the course of their employment; and
  2. Employment tribunals have the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment.

Whilst the initial draft of the Act sought to re-introduce a legal obligation on employers to protect employees against harassment by third parties (e.g., clients), following debates in the House of Lords this provision was not retained.

What are reasonable steps?

The Equality and Human Rights Commission is due to update its guidance on sexual harassment and harassment at work to reflect the new duty, which it published in January 2020, and this will outline the steps employers will be required to take.

It is likely the term “reasonable steps” will be interpreted in a similar way to the “all reasonable steps” defence in the Equality Act 2010, which employers can use to defend themselves when faced with a claim for discrimination or harassment.

Employment Tribunals over the years have considered what would be expected of an employer to make out the “all reasonable steps” defence. For example, the employer in the case of Allay (UK) Ltd v Gehlen had appropriate policies in place and provided training to employees, but the employer’s defence was rejected because the employer had failed to refresh the training provided, which was over two years old.

The word “all”, which is utilised in the Equality Act 2010 defence, was not used in the Act as it was deemed that “reasonable steps” was a more proportionate obligation, meaning employers could satisfy the new duty at a lower threshold. Whilst the threshold may be lower than initially anticipated, the employer will be subject to a positive duty to prevent sexual harassment, as the Government is keen to ensure that employers take action to prioritise prevention of sexual harassment and ultimately improve workplace practices and cultures.

When do the changes come into force?

The Act will come into force one year after the day on which it received Royal Assent.

What should employers be doing now?

Although the Act does not come into force yet, employers should be proactive and prepare how they are going to comply with the new obligation ahead of time. Taking steps now will ensure employers are in the best position to prevent sexual harassment to achieve seamless compliance with the Act. Some practical steps employers could take include:

  • Reviewing the extent of sexual harassment in their organisation through monitoring complaints and undertaking risk assessments; and
  • Fostering a zero-tolerance workplace culture by use of effective anti-harassment policies, reporting mechanisms and training.

Employers will also need to ensure they maintain accurate and detailed records of their efforts to take reasonable steps to prevent sexual harassment, so if they are faced with an Employment Tribunal claim they can demonstrate they have fulfilled their duty.

If you need guidance on your approach to complying with this new duty and nurturing a safer working environment, please contact the Employment team at Acuity Law, which can provide tailored training and advice on best practices in the workplace. Coming soon will be our bespoke sexual harassment packages, which will provide employers with the necessary tools and documents to effectively implement change in compliance with the Act. To register your interest in our packages please click here.

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