The #MeToo movement prompted a societal shift in the approach to issues of sexual harassment in the modern workplace. In particular, it highlighted several shortcomings in the protection afforded to workers against sexual harassment.
As a result, in 2021 the former Conservative Government committed to strengthening the protection for workers against sexual harassment by introducing additional mandatory obligations on employers.
These changes will come into force from the 26th October 2024 under the The Worker Protection (Amendment of Equality Act 2010) Act 2023.
This article explores the existing law, the upcoming changes to the legislation and some practical tips for employers to prepare for the new duties imposed on them.
Understanding current protections under The Equality Act 2010
As defined under The Equality Act 2010, sexual harassment includes any unwanted conduct of a sexual nature where such conduct has the purpose or effect of either violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.
Employers can currently use the defence that they had taken all reasonable steps to prevent harassment in the workplace. In practice however, few employers succeed with this defence given the threshold required to satisfy it.
Key changes in employer obligations which come into effect in October 2024
The following changes will come into effect from 26th October 2024 under the new legislation:
- An obligation on employers to take reasonable steps to prevent and address reports of sexual harassment of their employees (i.e. meaning there will be a positive duty on employers to take reasonable steps to prevent sexual harassment in the workplace); and
- In sexual harassment claims, where an employer is found to have breached this new duty the Employment Tribunal will also have the power to uplift compensation by up to 25%. Given that there is no cap on the amount of compensation that may be awarded in discrimination claims this could be a substantial additional liability.
Claims for a breach of this duty can be made in the Employment Tribunal, however they must be attached to a claim for sexual harassment. The EHRC also has powers to take enforcement actions against employers who are in breach.
This duty does not extend to other harassment claims (i.e. linked to other protected characteristics), it only applies to sexual harassment.
Reasonable steps employers must take to prevent sexual harassment
The ‘reasonable steps’ employers are required to take must be proactive (i.e. creating or controlling the workplace to prevent sexual harassment, rather than just responding to complaints or being passive) and they will likely be proportionate to the size of the employer and its resources.
The former Government intended to produce a statutory code of practice on sexual harassment at work, setting out the steps employers should take to prevent and respond to such claims, alongside these legislative changes.
They were collaborating with the ECHR to update and codify the existing ECHR code, and it was expected that this would be published around a month before the new legislation comes into effect.
However, given the change in Government, it is now unclear as to whether this will now be delayed. In the meantime, we have set out some practical tips below that employers should consider prior to the changes coming into effect.
Practical tips for employers to prepare for the new legislation
There are several ways in which employers can review and prepare for the upcoming changes as follows:
- Reviewing (and, where relevant, updating) policies and handbooks to ensure they are clear on the company’s approach to issues and complaints of sexual harassment by ensuring they clearly outline relevant reporting systems and how complaints will be dealt with;
- Ensuring workplace culture is inclusive and there is a zero-tolerance approach to harassment;
- Workers should be encouraged to report sexual harassment and inappropriate behaviour;
- Training should be provided to staff to ensure they understand where ‘workplace banter’ crosses the line into harassment;
- Dealing with any potential complaints seriously and promptly; and
- Monitoring any potential issue areas and identifying risks in the workplace;
Potential future changes and implications under Labour Government
The legislation which is coming into force in October 2024 is significantly watered down from the Bill as it was originally drafted.
Two key amendments included the removal of the obligation for employers to take ‘ALL reasonable steps’ (which would have imposed a higher standard of obligations on employers) to prevent sexual harassment and the proposed re-introduction of employer liability for harassment by third parties.
Previously, the Labour party indicated that it would support and be willing to re-instate these provisions, in particular the employer liability protection against harassment by third parties, and so these obligations may well change again in the future.
How can Morr & Co help?
If you require further assistance and advice on upcoming changes to the sexual harassment legislation or have any questions about this article, please call our Employment team on 01737 854500 or email [email protected] and a member of our expert team will get back to you.