Following recommendations from the Women and Equalities Committee and the Equality and Human Right Commission, the Government has introduced a mandatory duty on employers to prevent sexual harassment in the workplace. The Worker Protection (Amendment of Equality Act 2010) Act received Royal Assent on 26th October 2023, and is likely to come into force in late October 2024.
The Act introduces a new legal duty for employers to take “reasonable steps” to prevent the sexual harassment of employees (regardless of gender) in the course of their employment. Employers will therefore be required to take a proactive approach to tackle toxic workplace culture.
Sexual harassment occurs where a person engages in unwanted conduct of a sexual nature and the conduct has the purpose or effect of either violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. This would, for example, include sexual advances, groping, sexual jokes, sending sexually explicit emails or text messages etc.
The new duty only applies to sexual harassment. It does not apply to harassment based on other protected characteristics such as race, age or sexual orientation; and it does not apply to harassment which is related to sex but is not conduct of a sexual nature.
Employers are already vicariously liable for the acts of employees who discriminate against other employees, unless the employer can show that it took “all reasonable steps” to prevent the discrimination from occurring (what is commonly referred to as the “all reasonable steps defence”). Case law demonstrates that it’s difficult for employers to rely on this defence as it is a high hurdle to satisfy.
The scope of the new duty to take “reasonable steps” to prevent sexual harassment from occurring has not been defined in the legislation. However, it’s likely that an Employment Tribunal will scrutinise any policies, procedures, training and other steps to ensure it creates a culture that does not tolerate sexual harassment in the workplace.
If a claim of sexual harassment is upheld and the Tribunal awards compensation, the Tribunal will then consider whether the employer has breached the duty to take “reasonable steps” to prevent the harassment. If a breach is established, the Tribunal can award an uplift to compensation by up to 25% (similar to the current regime for breach of the ACAS Code of Practice).
The Equality and Human Right Commission (“EHRC”) will also be able to enforce the new duty and intends to update its existing technical guidance accordingly, which will no doubt be a helpful guidance for employers once published. We are not aware that Acas plans to give any separate guidance but this may follow in due course.
In the meantime, to prepare for the new law, employers should:
- Review and update relevant policies to ensure sexual harassment is covered in sufficient detail.
- Ensure there is a zero-tolerance culture to harassment and staff are encouraged to speak-up about inappropriate behaviour.
- Continue to roll-out and refresh training on appropriate behaviour in the workplace.
- Ensure adequate reporting procedures are in place and that issues are properly investigated and dealt with effectively – even if they are historic ones.
- Consider whether there are any areas of the business which give rise to particular risks of sexual harassment, and, if so, how to mitigate those risks.
- Consider using an anonymous staff survey to gain insight into employees’ views on the culture of the organisation and whether there are potential risk areas that need to be addressed.
This is only intended to be a summary and not specific legal advice. If you would like further information or advice, please do contact a member of our team.
Contact Us
Selene Holden (seleneholden@greene-greene.com ~ 01284 717436)
Greg Jones (gregjones@greene-greene.com ~ 01284 717446)
Angharad Ellis Owen (aeo@greene-greene.com ~ 01284 717453)
Katie Harris-Wright (katieharris-wright@Greene-Greene.com ~ 01284 717442)
For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.
