Here are six things you need to know.
1 What will this new law do?
The Worker Protection (Amendment of Equality Act 2010) Act 2023, which does not apply to Northern Ireland, will place a new pre-emptive duty on employers to take 'reasonable steps' to prevent sexual harassment of employees in the course of their employment.
This legislation extends to workers and some self-employed people. The phrase, 'in the course of their employment' covers activities outside the workplace, such as work drinks or off-site events. It is also wide enough to encompass sexual harassment by third parties.
The new provisions use the existing definition of sexual harassment in the Equality Act 2010 ('EqA'), namely unwanted conduct of a sexual nature that has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant.
The EqA already provides a defence to a harassment claim if you, the employer, can show you took all reasonable steps to prevent it from happening. This made it advisable to take such steps, but there was no requirement to do so. The new law goes further by placing a separate legal obligation on all employers to take proactive measures to prevent sexual harassment.
Although the law has primarily been introduced to protect women, it applies equally to people of all genders.
2 When will it come into force?
The Act will come into force in October 2024, one year after it was passed. You have 11 months to prepare.
3 What if you don't comply?
An employee will not be able to bring a free-standing claim alleging a breach of this duty in the employment tribunal. However, if you breach this new duty, you could face proceedings by the Equality and Human Rights Commission ('EHRC'), as it will have new powers to enforce standalone breaches, even if there has been no sexual harassment.
If an employee brings a successful complaint of sexual harassment, you risk an uplift in compensation of up to 25% if the tribunal is satisfied that you breached the new duty to take reasonable steps to prevent it. There is unlikely to be any requirement for the individual or the EHRC to show that taking those steps would have made any difference.
4 How will it be enforced?
A claim for breach of the new duty can be made in the Employment Tribunal but it must be 'attached' to a claim for sexual harassment. It is not a free-standing claim. Although this is only triggered if there has been sexual harassment, the uplift itself will apply to all the compensation that has been awarded for any type of harassment. This could be expensive if an employee has succeeded in a claim for multiple incidents of harassment.
5 What guidance is available?
The EHRC will produce a new statutory code of practice on workplace harassment. This is likely to be similar to its current technical guidance on sexual harassment and harassment at work, save that it will only cover sexual harassment and not the other forms prohibited under the EqA. The EHRC will be consulting on the new code, and it should be published before the new duty comes into force. The government has also committed to producing further guidance for employers on sexual harassment.
6 What should you do now?
What is reasonable will vary from employer to employer, depending on the size and nature of the business, the resources available and any specific risk factors in their particular sector. The larger your business, the more a tribunal is likely to expect from you. If you have not done so, take these steps now:
Anti-harassment policy
Develop and communicate an effective anti-harassment policy. It should define sexual harassment, and state that it is unlawful and that you will not tolerate it. Describe your procedure for receiving and responding to complaints. Ensure that you actively communicate the policy to staff, including during induction. Evaluate its effectiveness regularly (at least annually).
Assess the risk
Consider whether any factors might increase the likelihood of sexual harassment taking place in your workplace. For example:
· Job insecurity
· Power imbalances
· Gender imbalances
Identify how you can minimise the risk.
Train
Train your staff members on what sexual harassment in the workplace looks like, what to do if they experience it, either directly or as a bystander, and, if appropriate, how to handle complaints. Run staff surveys and exit interviews to help you understand where any potential issues lie and whether the steps you are taking are working.
Tailor your training to your business and the target audience (such as by seniority and job role). Make it engaging, meaningful and regular.
Act
The new legal duty will be to take preventative steps, so conducting a thorough investigation after an incident of harassment will not be sufficient to avoid liability. However, if you can show that you have taken effective steps to deal with harassment, this may help to prove you take your anti-harassment policy seriously and use it effectively when staff members breach it. It will also deter those considering breaching the policy in the future.
Culture
Create the right workplace culture. The right policies and procedures mean nothing if everyone thinks that nothing will change or that they will suffer a detriment for raising a complaint. Set the right tone at the top and promote it throughout the business.
Review
Review your policies once the EHRC issues the new code of practice. Identify what, if any, steps you should take. Decide whether to introduce a standalone sexual harassment policy. Record what you do.
Register
Consider creating or updating a central reporting register for complaints about all forms of harassment.
Third parties
Install visible signs in areas where customers interact with staff members explaining that threats, violence and harassment will not be tolerated. Provide a means for bystanders to report instances of staff harassment.