How?
In order to strengthen protections for employees from sexual harassment, new provisions are being added to the Equality Act 2010 as of October 2024. This is through The Worker Protection (Amendment of Equality Act 2010) Act 2023.
What does this look like?
This provision creates a new mandatory duty on employees to take reasonable steps to prevent the sexual harassment of their employees whilst at work. Sexual harassment means unwanted conduct of a sexual nature, as already defined in the Equality Act 2010. The aim of the new duty is to encourage employers to proactively prevent sexual harassment and it will run alongside the existing protections from sexual harassment under the Equality Act 2010. This is an amendment that applies only to sexual harassment and does not relate to harassment related to other protected characteristics.
Reasonable steps?
What does this mean as it is not defined in the Act. The Explanatory Notes explain that these reasonable steps are dependent on the size and resources if the employer, the sector and specific circumstances. As with the existing reasonable steps defence that an employer can rely on to diminish its liability for harassment, internal policies, training and procedures will be relevant. Reasonable steps will be fact specific and different from case to case.
More claims available?
The new duty does not give rise to a new head of claim. A breach of this duty is not actionable in its own right. If a sexual harassment claim is successful, the Tribunal will then be obliged to ascertain whether the employer breached its duty to take the reasonable steps to prevent sexual harassment, as defined above.
Compensation and enforcement
So what does someone get if they are successful in their claim for sexual harassment and the Tribunal finds there has been a breach of the duty to take reasonable steps? The Tribunal can award the individual a 25% uplift on their compensation. In addition, the Equality & Human Rights Commission (EHRC) also has direct enforcement powers over this new duty. The EHRC can:
- Conduct an investigation into the employer;
- Issue an unlawful act notice;
- Engage in a binding agreement with the employer to address an on-going issue;
- Assist and/or intervene in specific legal disputes.
What will Labour do?
Now we have a change in government, will that make a difference? Labour has signalled that it will strengthen this duty so that employers are required to take all reasonable steps to prevent sexual harassment in the workplace. This is wider than simply reasonable steps.
Let’s wait and see. This blog was written by Elizabeth McGlone, Partner at didlaw
