The Worker Protection (Amendment of Equality Act 2010) Act 2023 is set to come into force on 26th October 2024 and, with its arrival, comes greater protection for employees from sexual harassment, but also an obligation on employers to be proactive in preventing such conduct in the workplace.
The Act arrives in response to an awareness that sexual harassment is still prevalent in society, evidenced through the number of high-profile sexual harassment cases detailed in the media and litigated in the courts and tribunals. Coupled with this is the concern that many of these cases still go unreported in the workplace due to a perceived lack of support from employers (1).
“79% of women do not report their experience of workplace sexual harassment” – Wera Hobhouse MP, Member for Bath, 21st October 2022
This new Act is aimed at encouraging employers to take preventative measures to reduce the likelihood of such unwanted behaviour occurring in the workplace by requiring employers to have in place robust policies and procedures to ensure compliance with aims of the legislation. This will mean that all employers will have a statutory duty to take ‘reasonable steps’ to prevent sexual harassment at work. If employers fail to discharge this duty, they open themselves up to not only further potential claims, but also a situation where a successful sexual harassment claim could see a 25% uplift in the level of compensation awarded to the claimant precisely because of the employer’s failure to take proactive measures.
So, what are ‘reasonable steps’?
Reasonable steps would include:
Having a standalone sexual harassment policy or detailed policy contained in an Employee Handbook
Providing sexual harassment training to employees on a regular basis
Having specific procedures in place for dealing with sexual harassment complaints
Being vigilant about negative behaviour in the workplace and ensuring that it is dealt with swiftly and appropriately.
In many respects, these steps do not appear all that onerous on the face of it and, in fact, may seem like a common sense approach but it is worth noting that, at present, there is no legal requirement for an employer to have a policy or training in place dealing with sexual harassment. The new Act will bring in this requirement for the first time.
What will the future hold?
Whilst the Act is a welcome step in the right direction in terms of improving the welfare of the UK workforce, it is a much-diluted version of the Bill that was first proposed. For instance, the initial Bill intended to create third party liability for employers – greatly increasing the scope of an employer’s potential liability. This would mean that, under the initial proposals, the behaviour of individuals with no connection whatsoever to the employer’s business could lead to claims where they have harassed an employee. This proposal was rejected by the House of Lords due to a fear that it would open the floodgates for claims and lead to increased costs for businesses, as well as excessive state intervention in business. Whilst the question of third party liability may appear again somewhere down the line, it is – for now at least – not a concern for employers.
The wording of the original Bill was also subject to change which reduced the duties placed on employers. The requirement for employers to take “all reasonable steps” to prevent sexual harassment, as was proposed in the initial Bill, has now been changed to a requirement simply to take “reasonable steps”. This seemingly minor change makes a world of difference for employers by narrowing the scope of its interpretation. The House of Lords again were concerned that such all-encompassing wording would conceivably create an infinite amount of steps for employers to take to discharge their duty.
Whist the Worker Protection (Amendment of Equality Act 2010) Act 2023 may not signify the major leap forward that was initially envisioned when it was first drafted, there can be no doubt that its arrival will be welcomed by the UK workforce.