New Law Requiring Employers to Take Action to Prevent Sexual Harassment
The Worker Protection (Amendment of Equality Act 2010) Act 2023, which introduces a new duty on employers to take reasonable steps to prevent sexual harassment of their employees in the workplace, received Royal Assent on 26 October 2023. While it has been watered down compared to the original proposals, the new law will still create an important new duty that employers will need to take seriously.
What Does the New Law Say?
The new law imposes a duty on employers to take reasonable steps to prevent sexual harassment of employees in the course of their employment. The aim is to protect employees from sexual harassment, which is defined in the Equality Act 2010 as unwanted conduct of a ‘sexual nature’. While the law has primarily been established to protect women, it applies equally to all genders.`
There is already a defence to a harassment claim in the equality legislation where an employer can demonstrate that they had taken all reasonable steps to prevent it from happening. As a result, it was advisable to take such steps, but an actual requirement to do so did not exist. The new law goes one step further by placing a separate legal obligation on all employers to take proactive measures to prevent sexual harassment.
When Does It Apply?
Employers will only be liable for failing to take reasonable steps to prevent sexual harassment; not for harassment based on other protected characteristics such as age, sexual orientation, belief and age. The duty will also not apply when the harassment concerned is related to sex but is not conduct of a sexual nature. Finally, it will not safeguard against the harassment of employees by third parties, such as customers and clients.
What is Meant by Reasonable Steps?
While there is no guidance on this in the new law, many employers will be familiar with the reasonable steps defence in the equality legislation, which uses similar wording – that requires an employer to take all reasonable steps to prevent discrimination or harassment.
The word ‘all’ was, however, taken out from the new duty, meaning this is a somewhat lower threshold. Therefore, it is not expected that the new law will require employers to do anything significantly more than a prudent employer is already doing to prevent discrimination in the workplace.
It is also likely that the government will publish further guidance on what steps an employer might be expected to undertake before the law comes into force.
Enforcement
It will be possible to bring a claim for breach of the new duty in an employment tribunal. However, the claim must be attached to a claim for sexual harassment; it is not a free-standing claim. If an employee is successful in a sexual harassment claim and the employer is found to have breached its duty to take reasonable steps to avoid sexual harassment, the employment tribunal will have the power to uplift compensation by up to 25%.
When Does the New Law Come into Force?
The new law was passed on 26 October 2023 and will come into force one year after this date. This gives employers time to review their current anti-harassment policies, making sure that they are robust and specifically cover sexual harassment, ideally in a separate policy. For more advice or information, contact our employment team via email.
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