According to a 2023 poll, 40% of women say they have experienced sexual harassment at work, and this number is higher for disabled women, black and minoritised women. Despite many employers having policies in place, many of these incidents go unreported, and sexual harassment in the workplace has remained a persistent problem. The Worker Protection (Amendment of Equality Act 2010) Act 2023 ("the Act") intends to address this by creating a positive duty on employers to prevent sexual harassment occurring in the first place. This duty comes into force on 26 October.
How is the law changing?
While sexual harassment is currently prohibited, employers may defend a claim brought by a worker if they have taken "all reasonable steps" to prevent the harassment that is being complained of. In theory, that should have encouraged employers to put in place policies, procedures and training that prevented the harassment taking place. In practice, where sexual harassment has been proven, few employers are able to successfully establish the defence. The new legislation requires employers to address sexual harassment in a more proactive way, with a duty to take reasonable steps to prevent the sexual harassment in general from happening in the first place.
What will happen if employers breach the duty?
If a worker brings a successful claim for sexual harassment and the employer is found to have breached the duty, the employment tribunal will be able to uplift the compensation by 25%. As compensation for sexual harassment is potentially unlimited, this could be a significant uplift. The Equality and Human Rights Commission ("EHRC") can also take enforcement action against the employer. While direct action by the EHRC includes investigations, unlawful act notices and injunctions or interdicts, indirect action, taken through the courts, can result in unlimited fines being issued.
Third party harassment
Although an employer is not directly liable for sexual harassment in the workplace carried out by a third party, there can be liability in some circumstances where the employer's response to it falls short. Furthermore, the new duty to prevent sexual harassment also applies to third party harassment. The EHRC guidance is very clear that "The preventative duty includes worker-on-worker harassment and harassment by third parties such as customers, clients or patients". Employers must therefore also take reasonable steps to protect workers from third party harassment. It is also worth noting that the Labour Government have pledged to strengthen the legislation in this area. This may involve the Act being revisited with employers being made directly liable for third party harassment.
What can employers do to prepare?
The EHRC Sexual harassment and harassment at work: technical guidance ("the Guidance"), which is for employers, workers and their representatives, was recently updated following on from a consultation earlier this year, and a shorter Employer 8-step guide: Preventing sexual harassment at work ("the Guide") has also been published. In summary, it is recommended that employers: -
- Develop an effective anti-harassment policy
- Engage with staff
- Risk assess
- Use a reporting system
- Train staff
- Respond immediately to complaints
- Ensure 3rd party harassment is treated as seriously as harassment by a colleague; and
- Monitor and evaluate the effectiveness of the steps put in place to deal with sexual harassment
Both the Guide and the Guidance provide more detail on how these steps can be successfully achieved and are well worth a read. Further guidance is also available from the CIPD and Acas. We have also covered this issue in a podcast - Sexual harassment changes are imminent - are employers ready? - and in our most recent Essential Employment Law Webinar which, if you were not able to attend, can be found at Preventing Sexual Harassment at Work.
How we can help
If you would like some help updating your harassment policies to comply with the new duty, please contact Sarah Gilzean or get in touch with your usual MFMac contact. We can also provide equality and anti-harassment training tailored to your organisation, so please get in touch if you would like to discuss how we can help.
