Employers will be subject to new legal requirements to combat sexual harassment in the workplace starting in 2023. The Worker Protection (Amendment of Equality Act 2010) Act imposes rigorous regulations on corporations, urging proactive actions to protect their employees. Carrying out these responsibilities is vital – not just to comply with the law, but also to maintain a secure and trustworthy workplace.

What is sexual harassment?

Sexual harassment creates an intimidating and humiliating work environment and is defined as unwelcome sexual activity, speech, or attitude. This conduct could offend their personal beliefs, feelings, or dignity.

The Worker Protection (Amendment of Equality Act 2010) Act 2023

Employment Tribunals can now raise damages by up to 25% if an employee successfully establishes their claim and the employer is deemed to have violated the new obligation. When compensation for sexual harassment is theoretically unlimited, it can significantly impact a claimant’s compensation and employer expenditures. A 25% increase is not automatic; nevertheless, it will be determined by the severity of the employer’s breach/noncompliance. Additionally, the Equality and Human Rights Commission (EHRC) has the authority to conduct enforcement action against employers. It’s also worth noting that this legislation does not cover harassment by third parties, such as customers. Also, this does not include harassment based on other qualities, such as race, gender, or religious views.

What is not changing on 26 October 2024?

  • Sexual harassment based on unwanted conduct of a sexual nature in the workplace is and will continue to be unlawful under the Equality Act 2010.
  • Employers are vicariously liable for the unlawful discriminatory and harassing behaviours of their employees in the course of employment – including sexual harassment;
  • Unlike other areas of employment law, both employers and individual employees can be named as respondents in an employment tribunal claim for sexual harassment (as well as discrimination and harassment more generally); and
  • compensation for sexual harassment (as for all harassment and discrimination claims) is potentially without limit.

Under existing law, employers can rely on the statutory defence if they can demonstrate that they took all reasonable precautions to prevent sexual harassment. The statutory defence applies (and will continue to apply) in discrimination and harassment claims. However, not all employers choose or can demonstrate that they have taken all reasonable precautions to avoid discrimination, harassment, and sexual harassment from occurring. Employers’ capacity to demonstrate that they have implemented rules and management training on equality and harassment is variable.

What’s changing—preventative duty, intervening before an act occurs

Employers’ responsibilities in the face of unwelcome sexual behavior are evolving. All companies will be required to take reasonable precautions to avoid sexual harassment in the workplace beginning October 26.The new legal responsibility, effective October 26, 2024, is both a legal duty and preventive. Employers who cannot demonstrate that they have taken reasonable precautionary measures will be in violation of the new duties. Non-compliance will not be an option before the Tribunal.

According to the planned new EHRC Guidance that will accompany the new Act, “the preventative duty is an anticipatory duty”. The new responsibility requires employers to take preemptive action before an incidence of sexual harassment occurs. Many employers respond to a complaint by implementing preventative measures, which is ineffective as the incident has already occurred. Employers will be required, beginning in October, to risk evaluate and anticipate various instances where sexual harassment may occur at work, as well as take reasonable actions to avoid it before it occurs.

What are Employers Expected to Do?

To comply with the new regulation, employers should:

    • Create and update an effective sexual harassment policy.
    • Communicate the policy clearly to all workers, outlining its purpose, impact, and the repercussions for violating it.
    • Provide staff training on sexual harassment and anticipated conduct. In addition, supervisors must be taught in efficient complaint management techniques.
    • Establish a clear system for reporting harassment, and make sure all employees are aware of it.
    • Address concerns carefully and impartially, making certain that no recriminations are leveled at the complaint.
    • Promote a zero-tolerance policy for sexual harassment.

If you would like assistance in drafting a sexual harassment policy for your company, please contact us: [email protected]