The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force on 26 October. It will introduce a new positive duty on employers to take reasonable steps to prevent sexual harassment in the workplace, and is accompanied by updated technical guidance produced by the Equality and Human Rights Commission (EHRC).
Harassment differs from other forms of protection available under the Equality Act 2010. The current format of protection has faced criticism for being too weak to prevent widescale problems, such as some of the experiences described in the #MeToo movement against sexual violence.
Sexual harassment is defined in the Equality Act as unwanted conduct of a sexual nature which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Examples of what may amount to sexual harassment include making sexual comments or jokes, asking intrusive questions about someone’s sex life or touching someone against their will.
The Worker Protection Act makes amendments to the existing provisions of the Equality Act. It requires that an employer take reasonable steps to prevent sexual harassment of its workers before it occurs. This means employers will have to assess the extent of any problem, such as through risk assessments and monitoring complaints about discrimination and harassment, but also the operational steps that might follow a ‘zero-tolerance’ policy against sexual harassment. Many employers will be considering whether existing policies, training and reporting mechanisms are adequate and fair. For solicitors, further consideration should be given to the recently updated warning notice on the use of non-disclosure agreements published by the Solicitors Regulation Authority.
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If sexual harassment does occur, an employer must take action to try to prevent it from happening again. It must also prevent victimisation, particularly for those who report or provide evidence in an investigation relating to sexual harassment. While the action to be taken will depend on many different circumstances, the EHRC recommends in its guidance that employers consult with trade unions and workforce representatives, such as in the development of anti-harassment policies.
Common issues depend upon the size of the employer, the nature of the workplace and the risks present in that workplace. The EHRC recommends that employers should have clear anti-harassment policies in place, which distinguish between different forms of harassment and which all workers are made aware of. Other reasonable steps may include proactively assessing risks in the workplace, providing training which should be regularly refreshed, and having clear processes in place to investigate allegations of sexual harassment.
As well as taking reasonable steps to prevent sexual harassment from other workers, the duty extends to preventing sexual harassment from third parties including customers, service users and members of the public. Vicarious liability under the Equality Act has many important caveats for the actions of staff in the course of their employment, but an employer’s statutory liability for third-party harassment was repealed from the Equality Act back in 2013.
In the event of a breach of the new duty, or a suspected breach, the EHRC has enforcement powers which include the ability to investigate an employer. Where it has been determined by the EHRC that the duty has been breached, it may issue a notice which would require the employer to put together an action plan setting out how it will prevent future breaches.
A criticism of the Worker Protection Act is that it does not introduce a free-standing claim for a breach of the new duty. It remains to be seen how employment tribunals will approach claims where it is alleged that an employer has breached the duty, but in line with the way statutory codes and guidance are often used in other types of employment law claims the EHRC’s guidance will be relevant to interpret facts on whether an employer has taken reasonable steps or not. Additionally, the latest edition of the Equal Treatment Bench Book offers some insight and guidance to the judiciary on cases that involve allegations of sexual harassment.
Aside from the damage suffered by workers who are victims of sexual harassment, the new duty will be relevant for other types of complaints that might be likely to follow. It also creates challenges for practitioners. For example, where an employer chooses to defend allegations of sexual harassment, solicitors should consider whether it is appropriate for them to advise an employee accused of harassment if they are also advising their employer, because of the risks of actual or perceived conflict of interest.
Where a claimant succeeds in their claim and the employment tribunal finds that there has been a breach of the new duty, it has the power to increase any remedy awarded for compensation by up to 25%. The tribunal will consider if, and to what extent, the employer has complied with the new preventative duty and any uplift awarded should reflect the extent of the breach. The power to increase compensation by up to 25% is discretionary but, unlike the current position for most unfair dismissal claims, there is no statutory cap on compensation for losses suffered in breach of the Equality Act.
Bruce Robin is an in-house solicitor for UNISON Legal Services
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