On 26 October 2024 the long-awaited Worker Protection (Amendment of Equality Act 2010) Act 2023 finally comes into force, having been on the cards for over a year.  There has been much speculation about what it actually means for employers.

In this article I explain the legislation in simple terms, how it interacts with the existing harassment law and provide guidance on what employers should do to lessen the risk of a successful claim against them as much as possible.

What is the new law?

It provides a new statutory duty on employers to take reasonable steps to prevent sexual harassment of their employees (which does include the wider definition incorporating workers) by other employees and, to a certain extent, third parties.  A failure to comply with the duty may lead to an uplift in compensation awarded by up to 25%, in a similar way there can be an uplift for failing to follow the ACAS Code of Practice on disciplinary and grievance procedures.  This ‘penalty’ is only applicable if the sexual harassment is conducted by another employee, it does not apply to third parties.

The Equality and Human Rights Commission (EHRC) will also have the power, under the legislation, to investigate non-compliance and provide ‘unlawful act notices’ and unlimited fines.  This does apply to sexual harassment by third parties as well as other employees.  However, the EHRC will work with employers to try and get them to comply with the law before giving out a fine and it will only be in rare cases, when an employer wilfully ignores any EHRC investigation, when they will be handed out.

What is sexual harassment?

It is unwanted conduct of a sexual nature, so unwelcome or uninvited, which has the purpose or effect of violating the dignity of a victim or creating an intimidating, hostile, degrading, humiliating or offensive environment.  The victim does not need to object to the conduct and the motive of the harasser is not relevant.  A one-off incident is also enough, there does not have to be a series of conduct.  The EHRC has provided a list of examples of sexual harassment, which include the following:

• Sexual comments or jokes 
• Displaying sexually graphic pictures, posters or photos 
• Suggestive looks, staring or leering 
• Propositions and sexual advances 
• Making promises in return for sexual favours 
• Sexual gestures 
• Intrusive questions about a person’s private or sex life, or a person discussing their own sex life 
• Sexual posts or contact on social media 
• Spreading sexual rumours about a person 
• Sending sexually explicit emails or text messages 
• Unwelcome touching, hugging, massaging or kissing 

How does the new sexual harassment law interact with the existing law on harassment?

While there has been a lot of media attention on the new legislation, it does not actually alter the definition of harassment or change how it is applied in practice for most of the protected characteristics involved in discrimination.

Under the Equality Act 2010 it is unlawful for employees to harass their fellow employees, workers, applicants and ex-employees/workers.  It is applicable to the protected characteristics of race, age, sexual orientation, disability, gender reassignment, religion and belief and sex.  The only usual protected characteristics that are not included (and no-one really knows why) are pregnancy/maternity and marriage/civil partnership. 

As far as employers are concerned, there are three approaches to defend claims of harassment, for which they can be vicariously liable (i.e. the employer is found liable due to one of their employee’s actions).  These are as follows:

• Challenge the claimant’s account of events, in effect saying what they are alleging never happened;

• Admitting what is alleged happened, but it did not amount to harassment legally; or

• They have taken ‘all reasonable steps’ to prevent the harassment, which is the defence expressly stated in the legislation.

The new sexual harassment law relates to the final one of these, so I will focus on this now.  You may note that I said the new law says the employer has to take reasonable steps, not all reasonable steps.  Therefore, if you comply with the current law on harassment, taking all reasonable steps, you will also be complying with the new sexual harassment law. To summarise, in order for an employer to successfully defend a harassment claim using the statutory defence, they have to show they have taken, all reasonable steps to prevent the harassment.  In addition, for harassment of a sexual nature, they may be penalised by the uplift to compensation of up to 25% if they have not taken reasonable steps to prevent the harassment.  Therefore, it is reasonable to conclude that an employer should look to take all reasonable steps to prevent any harassment based on the protected characteristics I have identified above, as this will also assist them in defending sexual harassment claims and avoid the uplift penalty.

So what are the ‘all reasonable steps’ you can take?

• Conduct a risk assessment of the workplace.  This should be documentary evidence that the employer has considered what risks there are of harassment taking place, based on their particular workplace environment, then what steps can be taken to reduce or remove the risks and decide on which ones are reasonable to take.

• Ensure you have detailed policies relating to equal opportunities, harassment and bullying, and procedures in place to deal with them.  Importantly, you should have evidence that you have reviewed and, if necessary, updated the policies on a regular basis, for example every year.  There should be evidence that staff are made aware of, and are familiar with, the policy and procedures on a regular basis.
• You should provide adequate training to employees which is specific to their place of work.  For example, someone working in a factory environment may require different training to someone working in hospitality or working virtually.  The training should include:

• what harassment is;
• what you will do if it happens;
• acceptable/unacceptable behaviour examples;
• an understanding of banter;
• what to do if they see harassment;
• and what to do if they suffer harassment.

• Provide additional training to managers and supervisors on harassment so it is seen that those at the top are setting the tone.  The training should provide more detail and workshops on encouraging people to report, how to spot harassment and what to do when it is reported to them.

• Have confidential and safe reporting routes for employees, for example an anonymous drop box and a confidential email address.  If you have an Employee Assistance Programme for staff, you can indicate to them that, while the service is confidential, they can always give consent to pass on any harassment information to you, as their employer.

• Deal with complaints and suggestions for improvement.  This can be staff surveys, focus groups and taking prompt action using the procedures contained in your policy.

• Ensure sanctions for inappropriate behaviour are undertaken on a consistent basis.  Managers should be trained to not sit on the fence but make a decision when it is one word against another, with reasonable reasons.  Follow up on the sanctions with further training as necessary and obtain feedback from staff with ongoing monitoring.

Risks of not taking ‘all reasonable steps’

As many organisations have found to their cost, even large corporations (e.g. McDonald’s, the BBC, the NHS and the Metropolitan Police), not only can you lose a case at an employment tribunal, with a compensation award that can now be larger and with no cap, there is a big risk of severe damage to your reputation.  Such cases will undoubtedly be picked up by the media and, with the new legislation coming into effect, there is certainly now no excuse in not taking action to eradicating or at least minimising harassment in the workplace.

Conclusion

If you carry out the seven steps above you will put yourself in the best place to defend any claim of harassment, including those of a sexual nature.   Too many employers have a policy drafted and then leave it sitting within a handbook or on an intranet, being forgotten.  This is not good enough, there has to be a paper trail of regular reviews and, if necessary, updates to the policies, with regular training for staff.

Here at View HR, we can not only assist you with the drafting of your policies and procedures but can undertake risk assessments and the training of your staff, tailored to your working environment.  We are finding many employers are coming to us at the moment to obtain such training, now that the new legislation is only a month or so away. 

Speak to us about how we can support your business to be in the best possible shape to demonstrate that it’s taken all reasonable steps to prevent sexual harassment in the workplace: guidance,

• Risk assessments, 
• Drafting policies, 
• Training, 
• Investigations,  
• Disciplinaries.

Link to ECHR Guidance if you fancy some bedtime reading: https://www.equalityhumanrights.com/guidance/consultation-technical-guidance-sexual-harassment-and-harassment-work?utm_source=e-shot&utm_medium=email&utm_campaign=Public+Consultation%3a+Updating+our+guidance+on+sexual+harassment+in+the+workplace