“The Worker Protection (Amendment of Equality Act 2010) Act 2023” is the very long title for this important piece of legislation which will come into force in October 2024.  This Act amends the Equality Act 2010 and imposes a new positive duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment.

Whilst October 2024 is some way off, employers need to think now about what processes they need to put in place to ensure they comply with the Act.  The Equality and Human Rights Commission (EHRC) will be able to take steps against an employer to enforce the Act.  If an employee brings a tribunal claim and succeeds in proving sexual harassment, the Tribunal will then have to consider if the employer had breached this positive duty and if so, the Tribunal will be able to award a compensation uplift of up to 25%.

The duty to take “reasonable steps” is not defined in the legislation, but the (EHRC) will be updating its guidance on sexual harassment and harassment at work to take account of the new duty.  This is expected to include steps employers will need to take to comply with the law.

It is worth noting that this legislation does not apply to harassment generally but specifically to “unwanted conduct of a sexual nature which has the purpose of effect of violating the individuals dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment”.  Accordingly, harassment of a non-sexual nature is not covered by this legislation.

In the original draft Bill, employees would have had the right to bring claims against their employer relating to harassment carried out by third parties.  This could include the employer’s clients or customers, employees, suppliers etc.  This wording did not make it to the Act itself.  However, as the Act does refer to sexual harassment “in the course of their employment” this wording is likely to be wide enough to encompass third party sexual harassment.  The EHRC guidance may deal with this and it will no doubt be developed in case law.

The Act requires the employer to protect “employees”, but this has the wider meaning of workers.

While we wait for the guidance from the EHRC, employers should begin to consider changes to their policies and procedures, training, and addressing any cultural concerns they may already have.  If an employer has existing grievances which raise sexual harassment, or suggest this is taking place, these always needed to be addressed, but there is now the further imperative that a successful Tribunal claim could result in a 25% higher compensation award.  Employers may be aware of rumours, rather than formal grievances, and these should be addressed.  As this Act introduces a positive duty, a “head in the sand” approach will not protect employers.

For more information please contact Marina Vincent at marina.vincent@haroldbenjamin.com