The Protection of Workers (Amending the Equality Act 2010) Act 2023 comes into force on 26 October. It will introduce a new positive duty for employers to take reasonable steps to prevent sexual harassment in the workplace and is accompanied by updated technical guidance developed by the Equality and Human Rights Commission (EHRC).
Harassment differs from other forms of protection available under the Equality Act 2010. The current protection format has been criticized as being too weak to prevent large-scale problems such as some of the experiences described in the #MeToo movement against sexual violence .
Sexual harassment is defined in the Equality Act as unwanted conduct of a sexual nature which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Examples of what may amount to sexual harassment include making sexual comments or jokes, asking intrusive questions about someone’s sex life, or touching someone against their will.
The Worker Protection Act amends existing provisions of the Equality Act. It requires the employer to take reasonable steps to prevent sexual harassment of its workers before it occurs. This means employers will need to assess the extent of any problem, such as through risk assessments and monitoring complaints of discrimination and harassment, but also operational steps that could follow a ‘zero tolerance’ policy against sexual harassment. Many employers will consider whether existing policies, training and reporting mechanisms are adequate and fair. For solicitors, further attention should be paid to the recently updated warning notice on the use of non-disclosure agreements published by the Solicitors Regulation Authority.
If sexual harassment occurs, the employer must take steps to try to prevent it from happening again. They must also prevent victimization, particularly for those who report or provide evidence in an investigation into sexual harassment. Although the action taken will depend on many different circumstances, the EHRC recommends in its guidance that employers consult with trade unions and workforce representatives, such as in developing anti-harassment policies.
Common issues depend on the size of the employer, the nature of the job and the risks present in that job. The EHRC recommends that employers have clear anti-harassment policies that distinguish between different forms of harassment and that all workers are informed about. Other reasonable steps may include proactively assessing workplace risks, providing training that should be regularly updated, and establishing clear processes to investigate allegations of sexual harassment.
In addition to taking reasonable steps to prevent sexual harassment by other workers, the duty also extends to preventing sexual harassment by third parties, including customers, service users and members of the public. Vicarious liability under the Equality Act has many important caveats for the actions of staff during their employment, but employer statutory liability for third party harassment has been repealed from the Equality Act since 2013.
In the event of a breach of the new duty or a suspected breach, the EHRC has enforcement powers, which include the ability to investigate an employer. Where it has been determined by the EHRC that the duty has been breached, it can issue a notice which would require the employer to draw up an action plan setting out how it will prevent future breaches.
One criticism of the Worker Protection Act is that it does not introduce a stand-alone claim for breach of the new duty. It remains to be seen how employment tribunals will deal with claims where an employer is alleged to have breached the duty, but in line with how statutory codes and guidance are often used in other types of employment law claims, the guidance The EHRC will be relevant to interpret the facts as to whether an employer has taken reasonable steps or not. In addition, the latest edition of the Equal Treatment Bench Book provides insight and guidance to the judiciary on cases involving allegations of sexual harassment.
In addition to the harm suffered by workers who are victims of sexual harassment, the new duty will be relevant to other types of complaints that may follow. It also creates challenges for practitioners. For example, if an employer chooses to defend allegations of sexual harassment, lawyers should consider whether it is appropriate for them to advise an employee accused of harassment if they are also advising their employer, due to the risks of a real conflict of interest or perceived.
Where a claimant accepts the claim and the employment tribunal finds that there has been a breach of the new duty, it has the power to increase any compensation award by up to 25%. The tribunal will consider whether and to what extent the employer has complied with the new preventive duty and any increase awarded should reflect the extent of the breach. The power to increase compensation by up to 25% is discretionary but, unlike the current position for most unfair dismissal claims, there is no statutory cap on compensation for losses suffered in breach of the Equality Act.
Bruce Robin is an in-house solicitor for UNISON Legal Services
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