The Worker Protection (Amendment of Equality Act 2010) Act 2023 is due to come into force in a few weeks’ time, on 26 October 2024. This means that, starting from next month, it will become a legal duty for employers to actively prevent sexual harassment at work.
The legislation amends the Equality Act such that an employer must now take reasonable steps to prevent the sexual harassment of employees in the course of their employment. This is a shift from the current law, which merely provides a defence to a harassment claim, if the employer takes all reasonable steps to prevent it occurring.
Sexual harassment in this context is:
“Unwanted conduct of a sexual nature” which has the “purpose or effect” of violating an individual’s “dignity” or “creating an intimidating, hostile, degrading, humiliating or offensive environment.”
This includes situations where employees are attending work socials or are working outside of the office, and might extend to cab journeys and travel home after a work event. This will be particularly important in the lead up to annual Christmas parties.
Compensation uplift
Where an employment tribunal finds that there has been sexual harassment and orders the employer to pay compensation, the tribunal must consider whether and to what extent the employer has breached the positive duty to take reasonable steps to prevent sexual harassment. If the employer is found to have taken no steps to prevent harassment, the tribunal may order a “compensation uplift” of up to 25% to reflect the failure.
Compensation for sexual harassment can be made up of both past and future loss of earnings, injury to feelings, and personal injury. Compensation in sexual harassment claims is uncapped, unlike unfair dismissal claims. Therefore a 25% uplift to an award for sexual harassment could be quite significant and prove to be very costly for any business.
Impact
So, what does this mean? The imposition of this positive duty on employers will mean that prevention of sexual harassment will become a higher priority. The threat of financial sanction will mean that employers can no longer afford to turn a blind eye to what goes on under their nose. In turn, it is hoped, harassment is less likely to occur.
If employers are to effectively prevent harassment, they need to be tuned in to understand where and how harassment occurs in their business. This is where employers need to ensure that their workplace culture is transparent and encourages victims to speak up. If employees lack confidence in the reporting process of their employer and fear retaliation, such as being ostracised for making a complaint, employers will be left in the dark as to how to help their employees.
Practical steps for employers – what is “prevention”?
What might reasonable steps to prevent harassment look like? It may include:
- Ensuring that up-to-date written policies and procedures regarding the prevention of harassment are made available to all staff;
- Regular situational training for all staff to build awareness and give guidance on how to safely intervene as bystanders – this should be more than a one off or “tick box” exercise which will not be adequate;
- Building a platform for the anonymous reporting of harassment;
- Ensuring any complaints are investigated and dealt with swiftly and fairly;
- Disciplining those who are found to have engaged in behaviour which breaches your policies;
- Specific and regular training for management, and evidence of this; and
- Consider equality champions and dedicated lines of communication where harassment concerns can be safely brought.
If the employer takes all reasonable steps to prevent sexual harassment (and has evidence to show this is more than a tick box exercise) then they won’t be liable if a staff member is found to have harassed another.
Given that the new changes are due to come in to force in October 2024, this is a reminder that employers should act swiftly and get their plan in place. If you’re looking to ensure your policies and procedures are compliant with the impending changes, please do not hesitate to contact our specialist employment team: employment@curzongreen.co.uk.