On 26 October 2024, the last day of British Summer Time, the Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force, introducing a new duty on employers to take reasonable steps to prevent sexual harassment in the workplace. At the same time, the Equality and Human Rights Commission (EHRC) have also been given new investigatory and enforcement powers.
Whilst there is no stand-alone claim for breach of the preventative duty (i.e. an employee cannot sue their employer directly for not offering workplace training), employment tribunals will be able to award an uplift of up to 25% to an employee's compensation where it finds the duty has been breached. Given that compensation for discrimination or harassment is uncapped, the financial consequence of breaching the new duty could be costly.
It is also worth noting that the new duty applies to both sexual harassment by an employer's own workers and by third parties such as clients and customers. This means that employers will now need to think about how often their employees encounter third parties, when/if sexual harassment might occur and then take reasonable steps to mitigate such harassment.
Whilst there is a defence available for employers if they can show that they took 'all reasonable steps' to prevent the employee from acting unlawfully, the requirement to take 'all' reasonable steps is more onerous than the normal defence available in respect of other types of discrimination complaints, and encourages employers to take a much more proactive approach.
The test of reasonableness will depend on factors such as the size of the employer, the nature of the workplace, the types of risks present in that workplace and inevitably the facts and circumstances of each particular situation. The EHRC guidance has set out examples of what may be considered reasonable steps, including:
- Putting in place harassment policies or reviewing and updating
existing harassment policies to ensure that sexual harassment is
covered, and behaviours expected from staff are made clear.
- Ensuring there is regular and effective training to educate
staff about sexual harassment. In particular, all staff should be
aware of (i) how to report sexual harassment (and should be
encouraged to do so), (ii) the sexual harassment policy and (iii)
the consequences of breaching the policy.
- Undertaking a risk assessment. In particular, consideration
should be given to factors that may increase the likelihood of
sexual harassment.
- Engaging with clients and customers to make them aware that sexual harassment will not be tolerated.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
