Empower, protect, prepare: Prevent workplace sexual harassment

Embrace change with new strategies to help prevent workplace sexual harassment.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 is set to come into force on 26 October 2024 with the aim of requiring employers to actively work to eliminate sexual harassment in the workplace by reasonable means available. With these requirements looming, it is important for employers to begin assessing how this will affect their organisation and what preparations are necessary.

New requirements to prevent sexual harassment

 The new Act amends the Equality Act 2010 by:

•  Mandating that employers engage in active and reasonable efforts to prevent sexual harassment towards their employees.
• Giving employment tribunals the power to increase compensation for sexual harassment by up to 25% should an employer not meet the requirements to coming into place.

The new requirement does not constitute a standalone claim; it must be associated with a pre-existing case of sexual harassment.

While this new obligation marks a considerable shift for employers, certain expected changes were not included in the final legislation:

•  The proposal to reintroduce provisions concerning harassment by third parties, which were eliminated in 2013, was not approved—thus maintaining the status quo on third-party harassment laws; and

• Altered the language from 'all reasonable steps' to 'reasonable steps' while still maintaining the legal defence that existed before the amendment under section 109(4) of the Equality Act, for employers who can prove they have taken 'all reasonable steps' to prevent harassment. In practice employers must still be diligent in taking 'all reasonable steps' to prevent harassment (and ensuring that if challenged they have evidence to prove this).

 Duties for employers and expected actions

The current legislation provides a defence for employers after an incident, if they can show the implementation of "all reasonable steps" to prevent such occurrences. The Act builds upon this, demanding preventative measures against sexual harassment.

We await the comprehensive EHRC guidelines on what will be considered "reasonable steps" which are anticipated to release in September, but they are expected to go beyond basic anti-harassment policies and generic training.

The draft guidance published by the EHRC as part of the consultation process highlights that the duty is preventative and anticipatory. Employers must ensure that that they do not wait until sexual harassment occurs prior to acting, and should it have taken place, employers should take action to prevent a repetition of such harassment.

 Steps employers can take now

To reduce the risk of a finding of non-compliance and penalties (including the 25% increase in compensation) employers should proactively work to eradicate sexual harassment in the workplace with robust policies and procedures that are actively promoted and enforced consistently across the workforce. The draft guidance indicates that reasonable steps will vary depending on various factors, including the employer's size, sector and resources.

 However, we would expect the following to be actions for consideration as we await the final guidance from the EHRC:

•  Establishing and enforcing a strict no-tolerance policy for all harassment cases.
• Having organisational leaders visibly support and embody the company's ethical guidelines.
• Creating a culture where employees are encouraged and feel secure to report issues without fear of retaliation, backed by definite policies.
• Providing staff with training that helps them recognise sexual harassment and informs them about prevention.
• Identifying and addressing any specific weaknesses in the workplace that may contribute to a higher risk of harassment.
• Keeping a confidential log of harassment complaints to track recurring issues and for proactive intervention.
• Regularly update and circulate the company's anti-harassment policy and protocols for maintaining respect at work to keep personnel informed of expected behaviour and protective strategies.
• Refresh training materials on anti-harassment to ensure they are engaging, relevant, and aligned with the new 'reasonable steps' requirements against sexual harassment in the workplace. 

As the landscape of workplace responsibilities evolves with the introduction of the Worker Protection (Amendment of Equality Act 2010) Act 2023, it's clear that employers need to proactively adjust their strategies to effectively and proactively combat sexual harassment. The shift towards a more preventive framework underscores the importance of fostering a safe and respectful environment for all employees.

While this article has aimed to shed light on the imminent changes and suggest preliminary steps that can be taken ahead of the full enactment of the new regulations, we understand that adapting to these changes may raise specific questions or require further clarification tailored to your unique operational context.  Call our specialist solicitors on 0808 231 1320 Should you need additional insights or have any lingering queries about how these regulatory updates might specifically impact your organisation, we can provide you with the guidance and support necessary to navigate these changes seamlessly, ensuring you're fully prepared when the Act comes into force. Whether it's understanding the nuance of 'reasonable steps' or integrating the new requirements with your existing policies, we're here to assist every step of the way to help you maintain a compliant, safe, and respectful workplace.

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