The new Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force on 26 October 2024.
The Equality Act 2010 already provides for protection against sexual harassment in the workplace from day one of employment, but that protection was not considered sufficient amid concerns that the true picture of sexual harassment in workplaces was being under-reported.
What is the new law?
The Worker Protection Act puts a legal duty on all employers to pro-actively take reasonable steps to prevent sexual harassment in the workplace. As well as ensuring that any complaints of sexual harassment are dealt with appropriately, it is now key for employers to be able to show that preventative measures are in place and action has been taken to minimise anticipated risks.
What has been commonly missed in reporting about the new law is that the Employment Rights Bill is seeking to amendment it further to increase the duty to “all reasonable steps”. Although seemingly minor, this change of wording will make a major difference to the steps that employers need to take to demonstrate compliance. An employer will only be deemed to have taken all reasonable steps if there are no further steps that they could reasonably have been expected to take. These steps will depend on the size and nature of your business and the number of staff you employ, but simply asking your employees undertake a 15 minute webinar on avoiding sexual harassment and having a policy in place in your staff handbook is not going cut it.
Employers will also now be required to take action to prevent sexual harassment of their employees by third parties, for example, by their clients, suppliers, service users or customers. This element will be of particular concern to the service industry and other public-facing sectors.
What is Sexual Harassment?
Sexual harassment is defined as 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.
Sexual harassment can come from anyone that an individual engages with in the workplace, regardless of age, gender, and whether it was a one-off incident or part of a series of events. The harassment can include jokes, sharing offensive images, inappropriate questions, emails, social media posts or physical contact.
Sexual harassment in the workplace can have very serious consequences. The impact on the individual who experiences sexual harassment can be devastating, affecting their work and home life, their confidence and their health and wellbeing.
For employers and business owners, aside from the potential for expensive employment tribunal claims, it can lead to damage to reputation, difficulty in retaining and recruiting staff, and result in a culture of fear, inequality and poor employee engagement.
As an employer, where should I start?
Employers need to understand what risks may already exist and pro-actively look ahead for any potential risks. Risk assessments should be carried out to identify areas where improvement is needed, in the same way as if an employer was assessing the risk of physical injury in the workplace. Don’t forget to also assess the potential risk posed by third parties.
Research suggests that there are certain scenarios that may heighten the risk of sexual harassment taking place, such as where alcohol is involved or where there is an imbalance of power in the working relationship. There is evidence that workplaces that lack diversity have an increased risk of sexual harassment.
Training
Compulsory training at all levels is important to ensure that a consistent approach is taken around standards of behaviour, and should be refreshed on a regular basis. Training should be specific to the relevant sector or working environment.
Managers and supervisors have a key part to play in leading by example and dealing swiftly with any issues. More detailed training should be given to managers and HR teams so that they are confident in handling concerns appropriately.
We would recommend that the training you provide is specifically tailored to your business to get over the “all reasonable steps” hurdle.
The importance of clear and accessible policies
It is not enough to simply say that this type of behaviour will not be tolerated, there needs to be awareness of how to prevent sexual harassment, how to identify it and how to report it. Policies should be clear and accessible and reviewed on a regular basis, empowering individuals to report concerns, safe in the knowledge they will be dealt with appropriately and sensitively.
An employer that encourages openness and supports employees who report genuine concerns will be better placed to discourage and eradicate poor behaviour quickly.
Support for Managers and Supervisors
If an employee reports sexual harassment, their concerns must be taken seriously and investigated fairly, without undue delay, and in line with the relevant procedures. Managers should know how to respond to any reports, and how to support both parties involved in complaints of sexual harassment.
Although a breach of the new legislation alone is not grounds for an employment tribunal claim, if an employee is found to have been sexually harassed in the workplace, the new legislation allows the tribunal to increase any compensation by 25% where the employer is found to have breached their obligations. In addition, the Equality and Human Rights Commission will be able to take enforcement action against employers.
How can we help?
If you would like to discuss your obligations as an employer or business owner, our Employment and HR Team can assist. We can help you with preparing risk assessment documents, and reviewing your existing policies and procedures to ensure that they comply with the new legislation.
We also offer bespoke training packages that we can deliver for you, no matter the size of your business. Our training offering includes both sessions aimed at employees as well as at managers and senior staff, and will be tailored to the specific circumstances and risks facing your business. We offer both virtual and in-person training sessions, together with the resources you will need to demonstrate compliance with the Worker Protection Act.
Contact
Please contact our Employment & HR team by emailing online.enquiries@la-law.com if you would like to discuss any of the above.