The Worker Protection (Amendment of Equality Act 2010) Act 2023, introduces a new positive duty on employers prevent sexual harassment of their staff in the course of their employment.

The Act comes into force in October 2024

What has changed?

There is a new duty to take “reasonable steps” to prevent sexual harassment of – unwanted conduct of a “sexual nature” which has the purpose or effect of violating the individual’s dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment for them. Although the law has primarily been introduced to protect women, it applies equally to people of all genders.

The law already provides an employer with a defence to a harassment claim if they employer can show they had taken all reasonable steps to prevent it from happening. Whilst it was advisable to take steps, there was no actual requirement to do so. The new law goes further and creates a separate legal obligation on all employers to take proactive measures to prevent sexual harassment from occurring.

The new duty only applies to sexual harassment. It does not apply to harassment based on other protected characteristics. It also does not apply to harassment which is related to sex but is not conduct of a sexual nature.

If employers fail to take reasonable steps to prevent sex harassment, then the Equality and Human Right Commission can take enforcement steps, plus any successful tribunal claim will be subject to a compensation uplift of up to 25%.

What reasonable steps does an employer need to take?

Unhelpfully, the legislation doesn’t provide any guidance. But it is clear from the drafting that more will be expected from an employer than is currently required.

What should employers be doing?

Although the law does not change until October 2024, action should be taken now to ensure that you can show that reasonable steps are being put in place to prevent sexual harassment.

Some key steps of risk assessments include:

  • creating or updating central reporting registers for complaints about all forms of harassment;
  • updating and re-circulating anti-harassment policies and ensuring that policies focus on inclusion as well as equality;
  • put in place tailored training to help staff who witness harassment the ability to intervene safely or support colleagues;
  • conducting targeted risk assessments to identify risk factors and what action can be taken;
  • ensuring there is a clear avenue for reporting complaints – and for all complaints to be investigated and dealt with effectively – even if they are historic ones; and
  • considering 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.

It will be important to factor in any new requirements from the expected EHRC statutory Code of Practice when it is published.

12th November 2023

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