Worker Protection (Amendment of Equality Act 2010) Act 2023

On 26 October 2024, the Worker Protection (Amendment to Equality Act 2010) Act 2023 will come into force.

This Act introduces a new positive duty on all employers to take reasonable steps to prevent sexual harassment of their employees in the workplace. The Act inserts a new section 40A into the Equality Act 2010.

What types of sexual harassment does the Act cover?

Sexual harassment can be both physical and verbal.  It includes a wide range of behaviour such as sexual comments or jokes, displaying sexually graphic pictures, suggestive looks or advances, intrusive questions about someone’s private life, sending sexually explicit messages as well as physical actions such as touching, hugging or kissing.

The new duty applies only to sexual harassment and not to harassment on the grounds of other protected characteristics and the harassment must take place in the course of employment.  The duty is anticipatory and ongoing, so employers need to take steps to prevent sexual harassment occurring in the first place and then take further measures to prevent it happening again if they find it has occurred.

What reasonable steps do employers need to take?

What is considered to be a reasonable step will vary depending on the size of the employer and their resources, working environment, risks in the workplace and the types of third parties to which employees will come into contact.  When determining whether a step is reasonable, an employee will likely need to consider whether a particular step or an alternative step is more effective, the time, costs and disruption involved with taking a particular measure and whether or not any steps have already been effective, i.e. if sexual harassment has already taken place after a particular measure has been put in place the employer should identify alternative steps to address the  risk of future sexual harassment.  This duty will require ongoing monitoring to ensure employers remain compliant with the law.

There are no set minimum standards that the employer has to meet.  Therefore, we will have to wait until there are tribunal cases before we can fully understand what the duty will encompass and what steps will be found to have been reasonable, those steps are likely to depend on the facts and circumstances of each case.

The Act also gives employment tribunals the power to uplift compensation awarded by a tribunal in relation to claim for failure to prevent sexual harassment by up to 25%.

Employer eight step guide

The Equality and Human Rights Commission has also published technical guidance on sexual harassment and a new eight step guide for employers to follow: Employer 8-step guide: Preventing sexual harassment at work

The guide sets out eight steps which should be implemented by an employer by way of positive action to prevent sexual harassment in the workplace which are as follows:

1. Develop an effective anti-harassment policy
2. Engage with staff, for example through regular discussion and surveys
3. Assess and take steps to reduce workplace harassment, for example, by carrying out risk assessments in the workplace
4. Implement a reporting system such as by telephone or online to report concerns
5. Put in place training
6. Act immediately when receive harassment complaints
7. Take steps to prevent third party harassment
8. Monitor and evaluate the effectives of preventative steps put in place.

What employers need to do now

In light of the new Worker Protection (Amendment to Equality Act 2010) Act 2023, in order to be compliant, employers should now review their internal policies and procedures, including anti-harassment policy, and urgently put in place internal mechanisms to deal with any complaints of sexual harassment.

For advice and help with reviewing your policies and procedures, get in touch with Richard Gvero or Miranda Mulligan in the Employment team.