Big changes are afoot for the law on sexual harassment. On 26 October 2024, the Worker Protection (Amendment of Equality Act) Act 2023 comes into force. It introduces a new positive duty on employers to take reasonable steps to prevent sexual harassment in the workplace.
If employers breach the new duty, then there are two potential consequences:
- In claims for sexual harassment, the Employment tribunal can increase compensation by up to 25%; and
- The Equality and Human Rights Commission can take direct action against employers (in the form of unlawful act notices and, ultimately, fines) who they find, on investigation, have breached the new duty.
The new duty applies to preventing sexual harassment. It does not apply to preventing sex-based harassment or harassment for rejecting or accepting sexual advances.
In advance of this change in the law, the Equality and Human Rights Commission (EHRC) have issued updated guidance on sexual harassment at work. The guidance is not binding on employers but does give a good indication of what sorts of things will be looked at when considering whether an employer has taken ‘reasonable steps’ to prevent sexual harassment.
The guidance is light on detail. In summary:
- Employers should consider the risks of sexual harassment occurring in the course of employment in their specific business.
- Consideration of the risk of sexual harassment should not be limited to the risk posed by colleagues but should extend to encompass the risk of third- party harassment (see below).
- Employers should, having assessed the risk, consider what steps it could take to reduce those risks and prevent sexual harassment of workers.
- Any steps should be passed through the filter of reasonableness – the employer should consider, bearing in mind its size and the resources available to it, which of those steps would be reasonable to take and then implement them.
The draft guidance includes multiple references to the duty to protect employees from harassment by third parties. The duty as set out in the Act is clear: “An employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment”. This harassment could be carried out by a colleague, but it could equally be carried out by a third-party (for example, a customer or client).
Although the duty to prevent sexual harassment extends to harassment by third parties, employees themselves do not currently have the right to bring claims of harassment against their employer where the act in question was carried out by a third party. We did have previous provisions relating to third-party harassment, but these were repealed in 2013 and a recent attempt to re-introduce them did not go anywhere.
This means that the 25% uplift would not be, at the present time, a risk where harassment is carried out by a third party. What remains a risk is the potential for enforcement action to be taken by EHRC for failure to take steps to prevent third-party harassment of employees.
It is quite possible that Labour, having come to power following the general election in July, will seek to resurrect the previous proposal to introduce a free-standing claim for employees who suffer harassment by third parties at work. If they do, then the power to uplift claims by up to 25% for failure to comply with the duty to prevent sexual harassment, would clearly apply to such a claim.
In advance of October, employers should be carrying out a clear and detailed risk assessment focused on the risk of sexual harassment in the workplace. Once any risk areas have been identified, employers should consider what steps they could take to reduce those risks – and implement them. The risk assessment, and resulting actions, should be kept under regular review.
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