The Worker Protection (Amendment of Equality Act 2010) Act 2023) is coming into force in October 2024 and places a new duty on employers to take action to prevent sexual harassment in the workplace.
In summary, the new law:
- Introduces a duty on employers to take reasonable steps to prevent sexual harassment of their employees.
- Gives the Employment Tribunal power to uplift compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment.
This duty will apply to employers irrespective of the size of the business or the number of staff (although a tribunal will take the size and resources of an employer into account when assessing what is considered `reasonable’).
What is sexual harassment?
Sexual harassment is defined in section 26(2) of the Equality Act 2010 as:
“unwanted conduct of a sexual nature that creates an intimidating, hostile, or offensive environment for the person on the receiving end and/or violates their dignity.”
There are a variety of incidents and behaviours that might constitute sexual harassment, but some obvious examples include:
- Making sexually suggestive comments.
- Altering a pornographic image by adding a picture of a colleague’s head, then sending it to other co-workers.
- Touching someone in an inappropriate or unwanted manner, e.g., pinching someone’s bottom.
The Employment Appeal Tribunal has held that what constitutes sexual harassment is subjective, and there does not need to be a series or number of incidents – a one-off incident may be enough to constitute harassment:
The law does also not require the potential victim to have made it clear in the past that the sexual conduct was unwanted. In Insitu Cleaning Co v Heads  IRLR 4, the EAT stated that would-be harassers could not be allowed to “test the water” without consequence to see whether their conduct was objectionable to the receiver(s) if their behaviour is serious enough to reasonably constitute harassment.
What is the new duty on employers?
Employers are required to take “reasonable steps” to prevent sexual harassment of workers in the course of their employment.
The current law already provides a defence to a harassment claim if the employer can show they have taken all reasonable steps to prevent sexual harassment from happening. However, the new law places a legal obligation on all employers to take proactive measures to prevent sexual harassment in the workplace.
It is important to note that this law does not only protect women but applies equally to people of all genders.
What constitutes “reasonable steps”
There is no guidance on this in the new law. The employer’s defence in the Equality Act uses similar wording – that the employer took “all reasonable steps” to prevent the discrimination or harassment. The word “all” has been removed from the new legal duty, meaning this may be a lower threshold. However, employers should be aware that it is likely that Employment Tribunals will interpret the duty in a similar way to the employer’s defence under the Equality Act 2010.
Policies alone are unlikely to be enough.
A recent Employment Tribunal decision in Fischer v London United assessed what would be expected of an employer to make out the “all reasonable steps” defence. The employer in this case had appropriate policies in place, however, they had failed to take other steps such as keeping the policies up to date, making them available to all staff, and implementing regular training.
A worker can only claim that the employer has breached this new duty of taking reasonable steps as part of a wider claim for sexual harassment. They cannot bring a free-standing claim.
If an employee succeeds in a claim for sexual harassment and the employer is found to have breached its duty to take reasonable steps to avoid the sexual harassment, the Employment Tribunal has discretion to uplift the compensation payable to the worker by up to 25%. Although this uplift can only be applied in a successful claim for sexual harassment, the uplift will apply to all of the compensation that has been awarded including that for any other type of harassment that has also been added as part of the tribunal claim. A failure to take reasonable steps’ therefore can become very costly for an employer.
What about harassment of staff by third parties?
The new duty to take reasonable steps does not extend to taking steps to prevent third-party harassment. However, employers are still at risk of discrimination claims or claims of harassment itself if complaints from workers about harassment by third parties are ignored. Additionally, there is a significant risk of damage to reputation if an employer fails to prevent staff from being harassed at work.
What next steps should Employers take?
We recommend the following steps be taken over the coming months to comply with upcoming new legal duty to prevent:
- Have a separate sexual harassment policy detailing a non-exhaustive list of behaviour that might amount to sexual harassment and incorporating a speak up policy to ensure staff feel safe to report incidents of sexual harassment.
- Ensure your reporting systems for harassment incidents are fit for purpose and allow you to identify patterns, for example, a particular activity, such as a sales conference, which always results in harassment complaints. When creating the complaints register, make sure it complies with data protection rules.
- Update and roll out harassment training to all staff, ensuring line managers understand how to deal with complaints and employees know what constitutes harassment so they can avoid committing it.
- Place signs in areas where third parties such as customers, contractors, and suppliers encounter employees, stating that threats, violence, and harassment will not be tolerated.
- Conduct targeted risk assessments regarding situations or events where there may be a higher risk of sexual harassment and put in place measures to eliminate risks or mitigate them (if the former cannot be achieved).