As we approach August, it is important to be reminded of the upcoming changes to sexual harassment under the Worker Protection (Amendment of Equality Act 2010) Act, which come into force in October 2024, only three months from now.
What is changing?
The new legislation will place new obligations on employers to take ‘reasonable steps’ to prevent the sexual harassment of their employees in the workplace. As of now, despite rights afforded under the Equality Act 2010, there is no requirement for an employer to take such steps. However, having taken reasonable steps would assist in a defence should a sexual harassment case result in an Employment Tribunal claim.
As of October 2024, employers will need to implement proactive measures to prevent harassment from occurring. This will only apply to sexual harassment, and not other forms of harassment.
What are reasonable steps?
The Worker Protection Act does not define what ‘reasonable steps’ means. However, this will include practical measures which are proportionate and bespoke to the business, including comprehensive anti-harassment policies and the provision of training. It will be for the employer to decide how far they wish to go to adhere to the new duty.
It is anticipated that the Equality and Human Rights Commission (EHRC) will issue updated guidance on the subject, elaborating upon the current guidance which can be located at https://www.equalityhumanrights.com/.
What if you fall short of your obligations as an employer?
Whilst there is no standalone claim for breach of this duty in the workplace, the Employment Tribunal will have the ability to increase compensation for awards relating to sexual harassment by up to 25%, where it is found that the employer has fallen short of their duty. This could result in a large uplift in compensation.
Employers who do not take reasonable steps in accordance with the new Act risk enforcement action by the EHRC.
What should employers be doing to prepare?
- Employers must revisit and implement/update policies relating to anti-harassment. Policies should address measures which the employer intends to take to adhere to the new duty. Where in doubt, seek legal advice to ensure that your policies are compliant with the Act
- Employers should deliver mandatory training across the workplace on a regular basis, ensuring that employees are aware of how to spot sexual harassment, their role in helping to prevent it and how to report this
- Managers should be trained to handle complaints relating to sexual harassment, ensuring that they know how to deal with this confidently and considerately
- Employers should adopt a zero-tolerance approach to any form of sexual harassment,
and encourage a culture of equality and diversity. This should start with senior leaders to influence the workplace culture and embed values of respect and inclusion - Employers should implement measures to report sexual harassment, including a designated individual, and possibly an anonymous reporting line
- Employers should put in place a method of detecting sexual harassment, for example,
addressing this subject in exit meetings with employees
What does the future hold?
Whilst the duty only refers to ‘reasonable steps’, the initial bill intended to introduce a duty on employers to take ‘all reasonable steps’. This has since been removed from the Act, as the House of Lords felt concerned that this duty would be too onerous on employers. However, the duty to take ‘all reasonable steps’ may arise again. Therefore, it is best to be prepared now in anticipation of any future legislation.
If you have any questions in relation to the new duty relating to sexual harassment or employment law more generally, please do not hesitate to contact a member of the AfterAthena team (part of the Napthens Group) who are able to offer 30 minutes of free advice to QCS members.
