Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
We previously reported on the introduction of the Worker Protection (Amendment of Equality Act 2010) Bill. The Bill has now made its way through Parliament to become the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act).
In its original form, it proposed significant reforms to the laws around harassment, but it has been amended throughout the legislative process to water down the obligations on employers. That said, the Act contains some important new obligations for employers, which we explore below.
Why was the Act introduced?
Evidence has shown that workplace sexual harassment remains widespread despite strong legal protections against harassment already in place in discrimination law. For example, recent TUC research confirms that “over one in two women and nearly 7 out of 10 LGBT workers” have experienced sexual harassment in the workplace. Given this, there have been repeated calls for greater regulation in this area.
Action in this area was first considered back in 2018 but legislation was not introduced until a private members’ bill was set out by Liberal Democrat MP Wera Hobhouse last year, which gained Government support.
New mandatory duty on employers to prevent sexual harassment
The Act places a new proactive duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. This new law applies only in respect of sexual harassment under the Equality Act 2010 and not in respect of other types of harassment.
The original draft of the Bill provided that employers had to take “all reasonable steps” to prevent sexual harassment of its employees—closely mirroring the language of the employer’s defence to liability for discrimination, harassment or victimisation. However, this threshold of this new duty has been changed to “reasonable steps,” arguably a lower threshold.
What this means in practice remains to be seen. The Equality and Human Rights Commission has confirmed that it will update its technical guidance on sexual harassment to reflect the new duty and to set out the steps that employers should take to comply with the law—these amendments will be consulted upon so employers should get an early look in due course. However, one could anticipate that employers might be expected to do the following:
- Have appropriate anti-harassment policies in place, ensuring that they are:
- clear to whom they apply
- up to date
- readily available to staff
- widely understood
- Have regular and refreshed training in place
- Have appropriate procedures in place for reporting harassment and to investigate and deal with complaints
If an employer were to breach this duty, the law would be enforced in two ways:
- Firstly, employers that fail to comply with this new positive duty could face enforcement action by the Equality and Human Rights Commission (which might include investigations or litigation for example). It remains to be seen what additional resource the commission will be afforded to implement this in practice.
- Secondly, where employees successfully bring a sexual harassment claim and the employer has failed to comply with its duty, any compensation may be increased by up to 25%.
Liability for third-party harassment dropped
We previously reported that the Act would also introduce liability for harassment by a third party. This part of the Bill was dropped during its passage through Parliament and so is no longer included in the final version of the Act.
The Act passed on October 26, 2023 and will come into force one year from this date and it extends to Great Britain (England, Wales and Scotland) only. This gives employers some time to prepare.
Wera Hobhouse MP, who sponsored the Bill, recognised that the amendments to the Equality Act 2010 had reduced the scope of the original version of the bill, but asserted that the introduction of this new duty “will still send a strong signal to employers that they [employers] need to take action to prioritise prevention of sexual harassment and ultimately improve workplace practices and cultures.”
We will continue to monitor developments in this space.