The Worker Protection (Amendment of Equality Act 2010) Act 2023 was passed on 26 October and is expected to come into force in a year’s time, on 26 October 2024. The act creates a new duty for employers to protect employees of all genders from sexual harassment, by taking reasonable steps to prevent such harassment from happening.
When the law was first introduced, it included a requirement for employers to protect employees against harassment by third parties (such as customers or clients). However, this requirement was removed following debates in the House of Lords, and was not reinstated.
What are reasonable steps to prevent sexual harassment?
The new law doesn’t specify what amounts to ‘reasonable’ steps to prevent sexual harassment, but principles from case law around similar requirements in the Equality Act 2010 are likely to apply. For example, you may be required to not only have appropriate policies in place to prevent harassment, but also to keep the policies up to date, conduct appropriate training about the policies and make the policies available to all staff. Further guidance as to what these reasonable steps may be is likely to be issued by relevant agencies in due course.
What happens if I breach this duty?
An employee can’t bring a claim against you solely for breaching this duty – their claim must be attached to a claim of sexual harassment against them. However, if they are successful in their sexual harassment claim and you are also found to have breached your duty to prevent the sexual harassment, their compensation can be increased by up to 25%. Importantly, this uplift will apply to damages for the whole harassment claim (not just the sexual harassment component).
The employment tribunal will look at the extent to which you breached the duty when determining the level of compensation, so it’s a good idea to keep a record of what steps you took to prevent harassment.
What should I do now?
The law isn’t in force yet, but below are some examples of steps you can take now to get prepared:
- keep up to date with guidance issued around the new duty (eg the Equality and Human Rights Commission (EHRC) has indicated that it will update its existing guidance to reflect the new requirements);
- update and recirculate your anti-bullying and anti-harassment policies (our Staff handbook and policies includes an example policy, which can be generated as part of the handbook or on its own);
- carry out appropriate training to help your staff avoid sexual harassment, and be aware of how to help and support victims;
- conduct risk assessments to assess where risks might lie and how to minimise those risks; and
- make sure you have an appropriate process in place for reporting any complaints of sexual harassment.
You should also always ensure you take any complaints of sexual harassment seriously, whether your employee is accusing other staff members or third parties of harassment.
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Marion joined Sparqa Legal as a Senior Legal Editor in 2018. She previously worked as a corporate/commercial lawyer for five years at one of New Zealand’s leading law firms, Kensington Swan (now Dentons Kensington Swan), and as an in-house legal consultant for a UK tech company. Marion regularly writes for Sparqa’s blog, contributing across its commercial, IP and health and safety law content.