The Worker Protection (Amendment of Equality Act 2010) Act 2023 came into effect on 26 October 2024. It imposes a positive duty on employers to prevent sexual harassment in the workplace. We’ve referred to this as the “preventative duty”.
What do employers need to do?
An employer must take “reasonable steps” to prevent sexual harassment. It’s noteworthy that Parliament intentionally chose this obligation, rather than the “all reasonable steps” required to successfully rely upon the statutory defence to discrimination. This suggests a less onerous obligation however whether this makes a difference in practice is yet to be seen and is likely to be determine judicially.
What steps are needed is likely to depend on the circumstances of the business i.e. size and practicality. However, a small business that is found to have sexually harassed a member of staff is unlikely to evade liability purely because of its size. At its core, the law focuses on making a change to workplace culture.
Although the law doesn’t define the specific ‘reasonable steps’ that should be taken,
according to the ECHR, an employer should:
- consider the risks of sexual harassment occurring in the course of
employment; - consider what steps it could take to reduce those risks and prevent sexual
harassment of their workers; - consider which of those steps it would be reasonable for it to take; and
- implement those reasonable steps.
The best way to comply with the above would be to conduct a risk assessment, act on the outcomes of such risk assessments and ensure that the risk assessments are undertaken regularly. This may involve changes in your employment policies and terms of business with clients. It may involve notices to clients or prospective clients on your website.
What are the consequences?
Members of staff can’t bring freestanding claims that their employer has failed to comply with the preventative duty. However, if they have a successful harassment claim which to some extent relates to an allegation of sexual harassment, compensation under the Equality Act 2010 can be uplifted by up to 25%. This can result in a rather hefty award for high earners, particularly those with significant pension losses!
This also brings third party harassment into greater scope. The preventative duty expressly includes prevention of sexual harassment by third parties. According to the EHRC Guidance, third parties include a very broad range of individuals, namely customers, clients, service users, patients, friends and family of colleagues, delegates at a conference and members of the public.
Although a member of staff can’t mount a free-standing complaint that they have been subjected to sexual harassment by a third party, they could successfully allege that they have been harassed by a colleague which to some extent relates to sexual harassment by a third party. For example, a customer sexually harasses a bartender and a colleague harasses that bartender during the course of their grievance process. That colleague’s harassment need not be sexual harassment but given the grievance concerns sexual harassment, the colleague’s harassment relates to it. The failure to take reasonable steps to prevent the sexual harassment by the customer in this scenario could result in the Tribunal uplifting the compensation payable in respect of the harassment committed by the colleague.
We can help
If you are an employee with concerns about the measures your employer has, or has not, put in place to protect you in the workplace, or if you’re an employer with concerns about how to fulfil the new preventative duty, please get in touch with us here at People Legal.
We’re trained and experienced in handling all matters of employment law and can provide you with the information you need.
Call us on 0800 368 8470 or email [email protected] for free initial advice.
Please note the information contained in this briefing is intended as a general review of the subject featured and is not a substitute for obtaining specific legal advice.
