Laura Salmond

The Worker Protection (Amendment of Equality Act 2010) Bill, received royal assent on 26 October 2023, becoming the Worker Protection (Amendment of Equality Act 2010) Act 2023, and comes into effect in October 2024. This legislation will introduce a new preventative duty on employers to tackle sexual harassment in the workplace. However, during the parliamentary consultation period, the bill faced scrutiny and certain protections were watered-down.

Changes to the bill

Initially, the two main provisions of the bill intended to:

• Reintroduce protection against harassment of employees by third parties. This would have meant that employers would be potentially liable for any third-party harassment (such as from customers and clients) where the employer had not taken reasonably practicable steps to prevent it; and
• Place a positive duty on employers to take all reasonable steps to prevent sexual harassment of its employees in the course of their work.

However, the proposed duty for employers to take “all reasonable steps” to prevent sexual harassment has been watered down and the duty is now to take “reasonable steps”. Employers should take steps to comply with this duty by implementing policies and procedures for dealing with harassment complaints and providing training to all staff.

It is crucial that employers are aware that if they do not take reasonable steps to prevent sexual harassment, they could face enforcement action by the Equality and Human Rights Commission and employment tribunals would have the power to award an uplift to compensation for sexual harassment of up to 25 per cent.

Further, The Lords voted to remove clause 1 of the Bill, which would have restored the third-party harassment provisions in the Equality Act 2010, which were repealed in 2013. These provisions attracted controversy when they reached the House of Lords as they were seen to curtail free speech and place significant burden and costs on employers. The House of Lords voted to remove these third-party harassment provisions. Therefore, there will be no changes to the law as regards employer liability for harassment by third parties. The removal of this provision has been welcomed by employers as it may be seen as difficult to determine what constitutes “reasonable steps”, particularly in sectors such as hospitality where employees are dealing with a varied clientele.

Despite this amendment, employers should still take steps to deal with complaints by employees of harassment by third parties as employers may still be liable for discrimination/harassment if they fail to address an employee’s complaint of harassment by a third party. Protecting working women from sexual harassment by third parties – such as a customer, client, patient, or member of the public – is crucial as the TUC poll found that in two out of five (39 per cent) of the most recent incidents, the perpetrator of the sexual harassment, bullying or verbal abuse was a third party rather than another member of staff.

Duties on employers

In light of the amendments to the bill, the Act amends the Equality Act 2010 to:

• Introduce a duty on employers to take reasonable steps to prevent sexual harassment of their employees.
• Give employment tribunals the power to uplift sexual harassment compensation by up to 25 per cent where an employer is found to have breached the new duty to prevent sexual harassment.

Wera Hobhouse MP, who sponsored the Bill, indicated that she was reluctantly accepting the amendments to ensure the passage of the sexual harassment preventive duty, and described the Act as “the beginning of a much-needed culture change”.
Despite the fact that the Act will not come into force until October 2024, prudent employers should be proactively taking steps to ensure that they have sufficient protection, policies, procedures and training in place to avoid the risk of facing enforcement by the Equality and Human Rights Commission. Other risks include reputational damage and financial consequences given that the Act affords Tribunals the power to uplift sexual harassment compensation by up to 25 per cent where an employer is found to have breached the new duty to prevent sexual harassment.

What can employers do to get ahead of the legislation?

Develop and enforce a clear anti-harassment policy: Create a comprehensive anti-harassment policy that clearly defines what constitutes sexual harassment, including both explicit and implicit behaviours, and communicate this policy to all employees, ensuring that they understand it and know where to find it (e.g., in the employee handbook, or on the company’s website). You may also establish multiple reporting mechanisms, such as anonymous call lines or email, to make it easier for employees to report incidents. You should then investigate and deal with these complaints promptly.

Provide training and education: Conduct regular training sessions for employees to raise awareness about sexual harassment, its consequences, and how to prevent it. It is also crucial to train managers and supervisors on how to recognise, respond to, and prevent sexual harassment. You may also encourage employees to intervene if they witness inappropriate behaviour and provide guidance on how to do so effectively and safely.

Take all complaints seriously and investigate them promptly and impartially: Ensure that the complainant is protected from retaliation during and after the investigation. It is also crucial to implement consequences for offenders and make these clear. These may include disciplinary actions, up to and including termination.

Promote diversity and inclusion: Foster a workplace culture that values diversity and inclusion, as this can help reduce the likelihood of harassment.

Seek legal advice: Consult with employment law experts to ensure you are acting in compliance with the legislation in order to avoid potential liability. If you would like further information on how to protect yourself as an employer, please do not hesitate to contact a member of our team.

Laura Salmond is a partner at BTO Solicitors LLP