New duty for employers to take reasonable steps to prevent sexual harassment

The Worker Protection (Amendment of Equality Act 2010) Act received Royal Assent on 26 October 2023 and will introduce a duty on employers to take reasonable steps to prevent sexual harassment of their employees. Here, Helen Burgess looks at this important new legislation and what it will mean for employers and employees.

The change in law has been introduced to provide for further protection of workers under the Equality Act 2010 in relation to sexual harassment in particular.

Employers will need to consider what steps can be reasonably taken to ensure that sexual harassment does not take place. If it is found that there has been a failure to take steps the Equality and Human Rights Commission may take action against the employer.

In addition, where an individual makes a claim in the Employment Tribunal there will be a new power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment.

Following amendments made during parliamentary debates, the original proposals to re-introduce liability for third-party harassment to require that employers take “all reasonable steps” to protect employees from sexual harassment were dropped from the legislation.

The challenge of being able to show ‘all’ reasonable steps had been taken to prevent sexual harassment was seen as just too high a burden on employers. The requirement to show reasonable steps were taken has lowered the bar but it will still be important for employers to now review not just their current policies (and awareness of and adherence to them) but also the workplace culture to ensure that employees will not be at risk of harassment in the workplace.

There will be opportunity for employers to do this as the Act will not come into force until one year after the day on which it was passed which means that employers will have until October 2024 to ensure that appropriate action is taken.

The Government has confirmed that further guidance will be published on what steps an employer might be expected to undertake and the Equality and Human Rights Commission will be issuing a Code of Practice beforehand to assist employers’ preparations.

Employees should note the new rules and understand that their conduct in the workplace is likely to be under greater scrutiny. A zero-tolerance approach to sexual harassment is likely to be taken in all workplace scenarios which will include ‘official’ staff parties as well as more informal or casual after-work drinks.

Individuals should also take into account that under the Equality Act 2010, claims in respect of harassment may be made in the Employment Tribunal against named individual co-workers in addition to the employer. Where an award of compensation is made, both the individual and the employer will be jointly and severally liable.