The new duty on employers to prevent sexual harassment in the workplace, set out in the Worker Protection Act 2023, comes into force on 26 October 2024. Sexual harassment is, “unwanted conduct of a sexual nature which has the purpose or effect of violating a worker’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker.”
The Equality Act 2010 already prohibits sexual harassment and employers can be vicariously liable for sexual harassment carried out by their employees in the course of their employment. There may be a defence for employers that can show that they took reasonable steps to prevent the harassing employee from acting unlawfully.
However, following the “Me Too” Movement, the Equality and Human Rights Commission (“ECHR”) published a report which concluded that the existing protections were insufficient to protect workers from sexual harassment and made recommendations for changes. These include a mandatory duty for employers to take reasonable steps to protect workers from sexual harassment in the workplace.
The Act is to be supported by updated Guidance, a draft of which has already been published. An updated Code of Practice providing further clarification is expected to be published in due course.
What “reasonable steps” should employers be taking to comply with the new positive duty?
The draft guidance provides examples of what action employers might be expected to take to comply. The duty requires that employers should anticipate scenarios when their workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment from taking place. The Guidance envisages the following steps:
- A sexual harassment risk assessment to assess the risk of workers being exposed to sexual harassment (including by third parties such as customers) including an analysis of what steps are required to minimise those risks and prevent sexual harassment from taking place (this is not expressly stated in the draft Guidance but implied)
- Updates to anti-harassment policies and procedures to clarify the law, and to set out expected behaviours and complaints mechanisms
- Training with managers and staff to raise awareness of sexual harassment rights and of the employer’s policies and procedures
- Specific training for managers to support them in dealing with complaints
- A process for regularly reviewing the effectiveness of policies and training
- A timetable for refresher training for management and staff
- Encouraging staff to complain when they experience or witness sexual harassment
- Full consideration of the risks of third party harassment, including the types of third parties staff may come into contact with and the likelihood of staff coming into contact with third parties at all
- Notifying any self-employed consultants on site or with access to staff of the employer’s policies.
The draft Guidance sets a high bar – it includes provisions for a timetable for regular review and updating of policies and training, as well as the express inclusion of third party harassment.
In deciding whether a step is reasonable for an employer to take, factors including the size, nature and resources of the employer will be taken into account.
What are the possible consequences of non-compliance?
These are free-standing penalties and action which can be taken by the EHRC. Penalties include:
- Issuing an unlawful act notice following an investigation, confirming the employer has breached the Equality Act 2010 and requiring the employer to prepare an action plan setting out how matters will be resolved;
- Entering into a legally binding agreement with the employer to prevent future unlawful acts
- Asking the courts for an injunction to prevent an employer from committing an unlawful act
- If an individual succeeds in a claim for sexual harassment any award of compensation can be increased by up to 25% where the employment tribunal considers that the preventative duty has been breached
We shall provide a further update when the final Guidance is published. In the meantime, if you have any questions relating to the new duties or require training or a review of your policies and procedures before the new duty comes into force, please do not hesitate to contact us. Those who are members of our Employers Protection Scheme will have their policies and procedures reviewed and updated in the forthcoming weeks.
For more advice, don’t hesitate to get in touch with our expert team who will be happy to help.
