New statutory duty on employers to prevent workplace sexual harassment

The Worker Protection Act 2023, (Amendment of Equality Act 2010) received Royal Assent on the 26^th October and will come into force on the 27 October 2024. This article outlines the key provisions of the Act, the impact they will have, and steps businesses can take to prepare for the new duty.

The Worker Protection Act 2023, (Amendment of Equality Act 2010)

The Workers Protection Act 2023 extends existing employee protections within the Equality Act 2010 and increases the legal obligation of employers to take positive action to prevent sexual harassment in the workplace. The Act will:

1) Introduce a new duty on employers to take ‘reasonable steps’ to prevent employees from sexual harassment and;

2) Give Employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached this duty.

The new duty does not permit employees to make a freestanding claim for a breach of duty without an existing claim of harassment. However, employees may bring additional claims of other forms of harassment, providing an existing complaint of sexual harassment has been upheld. With employers who fail to demonstrate that they have taken reasonable steps to prevent sexual harassment facing an increase of up to 25% in compensatory payments, the duty increases financial redress for victims and incentivises businesses to act.

Background

In 2018, research undertaken as part of an inquiry into sexual harassment in the workplace by the House of Commons Women and Equalities Select Committee determined that, “despite existing protections, workplace sexual harassment remains widespread, underreported and poorly enforced”. Subsequently, it was recommended that the government introduce legislation mandating employers take a more proactive approach to eliminating harassment.

Following a 2019 consultation which supported the recommendations of the Committee, the government pledged to introduce new measures, alongside a new Equality and Human Rights Commission (EHRC) statutory Code of Practice regarding workplace harassment.

A ‘Watered-down’ Version?

Some feel that provisions were ‘watered-down’ as the Bill moved through parliament, including MP Wera Hobhouse who, having originally brought the Act to parliament as a private member’s Bill, admitted she “wasn’t completely happy” with the concessions, but acquiesced to ensure the Act was passed.

Whereas the original Bill stated that employers should take ‘all reasonable steps’ to protect employees from sexual harassment, the Act simply requires employers to take ‘reasonable steps’. This minor semantic adjustment is significant; some may view it as lowering the threshold and expectations of steps businesses must take to prevent sexual harassment. Paul Nowak, General Secretary of TUC branded the concessions “disgraceful” and felt that they “let down working women across the country”. The amendment was made after the House of Lords expressed concern that the proposed duty would demand too much from employers and suggest an “almost infinite” number of preventative steps must be taken.

In addition, as recommended by the Committee, the original Bill was set to reintroduce the legal obligation on employers (removed in 2013) to protect employees from harassment by third parties, such as clients or customers. This was a highly anticipated and significant aspect of the Bill- as evidenced by the 2020 government study which found that 1.5 million people were harassed at work by a third party each year. This provision has been removed entirely, and employers will not be liable for third party harassment. The change was made after concerns by Lords that such clauses could curtail free speech, require excessive state intervention to implement and police, and burden businesses with costs.

Sexual harassment is still a significant issue facing employees. A 2023 poll from the Trade Union Congress (TUC) found that three in five women, and two in three women aged between 25 and 34, had experienced harassment at work, mostly perpetrated by senior colleagues. Those who expected to see the heaviest obligations placed upon employers to prevent harassment may view the Act as a missed opportunity in the fight to eliminate inappropriate behaviour in the workplace.

Nevertheless, the new duty raises the threshold of actions employers must take and mandates a responsibility to positively prevent, detect, and deal with sexual harassment and discriminatory behaviours, which could lead to a tangible change in workplace culture and strengthen anti-harassment policies and procedures.

What does this mean for employers?

The Act does not provide a definition of ‘reasonable steps’; employers must wait for the EHRC to release the Statutory Code of Practice which will provide guidance and examples on preventing harassment. However, the Commission’s current guidance emphasises an employer’s obligation, not only to implement anti-harassment policies, but ensure their efficacy by consistently enforcing, monitoring, and reviewing them.

Businesses can begin to prepare for the introduction of the new duty by:

• Strengthening and updating existing policies and procedures (Specifically, Diversity, Equality and Inclusion and anti-harassment) Whilst there is no requirement for businesses to replace existing policies, businesses should ensure that they are strong and up to date. It is also important that policies clearly define sexual harassment and the consequences for violating policy. Establish a zero-tolerance policy to make the stance of the business clear.
• Undertaking risk assessments and anonymised workplace surveys. This can help to identify how risks to employees can be reduced.
• Reviewing procedures for reporting sexual harassment. Ensure that there are channels and procedures for reporting sexual harassment, and that all employees are aware of and understand how to report sexual harassment.
• Providing correct support and information. Offer employees information about how they can access counselling or advisory services.
• Raise awareness and encourage active support from managers about the new duty. Anyone with managerial responsibility should be encouraged and supported to actively prevent, challenge and address inappropriate or sexist behaviour. Outward support from senior management can also nurture a more diverse, inclusive workplace and a business culture which makes people feel supported and protected.

It remains to be seen whether the introduction of the Act will result in an increase in claims, a rise in cases in which employees are found in breach of their legislative duties, or an improvement in the way in which anti-harassment policies are implemented throughout businesses, helping to promote workplace cultures that protect and support employees.