Workers’ Protection (Amendment of the Equality Act 2010) Act 2023

Introduction

Having received Royal Assent on 26 October 2023, the Worker Protection (Amendment of the Equality Act 2010) Act 2023 (“2023 Amendment”) comes into force on 26 October 2024.

The purpose of the 2023 Amendment is to impose a new statutory duty on employers to take reasonable steps to prevent the sexual harassment of their employees during the course of their employment.

Some commentators have described the 2023 Amendment as being a “watered down” version of its original draft, which sought to implement two key provisions that were subsequently removed. Namely:

1. the duty of employers to take “all reasonable steps” to prevent acts of sexual harassment against their employees; and
2. the re-introduction of employers protecting their employees from harassment committed by third parties.

Indeed, during a committee debate on 14 July 2023, Labour MP Baroness Thronton commented that: “I cannot promise the House that we will not return to this issue when we are in government.”  So, should Labour come into power at the next general election this may well be revisited.  For the time being, employers need to prepare for the changes coming into effect on 26 October next year.

Why has the 2023 Amendment been brought into force?

Sexual harassment is a prevalent issue within the workplace and the 2023 Amendment is a positive step toward addressing this. The overarching effect is to shift from an ‘after-the-event’ mentality toward a proactive duty in preventing sexual harassment in the first place.

That being said, it should be emphasised that the 2023 Amendment does not apply to harassment related to other protected characteristics (e.g., age, race, religion or belief, disability, pregnancy, gender reassingment, marital status, or even a person’s sex). For the purposes of clarity, sexual harassment is defined as person A committing acts of unwanted behaviour that are of a sexual nature against person B. Whereas harassment on the grounds of sex occurs when a person is treated less favourably precisely because of their sex, for example not promoting someone because they are female.

Arguably, the duty to protect employees is already enshrined in section 109 of the Equality Act 2010 and, at face value, appears to place a more onerous duty on employers as compared to the 2023 Amendment. On closer inspection, however, I believe the opposite to be true for the following reasons:

1. section 109 does make clear that employers will be held vicariously liable for the conduct of their employees during the course of their employment; and
2. it also provides a statutory defence should an employer successfully demonstrate to an Employment Tribunal that it took “all reasonable steps” to prevent the offending employee from committing the act complained of (or anything of a similar description).

Typically, if a section 109 defence has been raised this means that the act of harassment has already occurred and litigation in relation to it has commenced. In contrast, and despite its “reasonable steps” (as opposed to “all reasonable steps”) threshold, the 2023 Amendment will encourage employers to regularly evaluate their working culture, instil the values espoused by the 2023 Amendment in their workforce, and ultimately, find ways to prevent workplace harassment.

What does reasonable steps mean? 

A criticism of the 2023 Amendment is that Parliament has not provided any guidance on what “reasonable steps” actually means. There is some sense in not doing so as what is reasonable in one set of circumstances may not be reasonable in another and so shall be left to Employment Tribunals (as well as appropriate bodies such as Equality and Human Rights Commission) to develop.

In real terms what we do know is that, where a claim for sexual harassment has been brought and, in the course of those proceedings, a Tribunal is satisfied that the employer had not upheld its duty to take reasonable steps to prevent sexual harassment, then it may uplift any compensation awarded by up to 25%, which can be a staggering amount of money should multiple claims of harassment be brought.

What do employers need to do now? 

Between now and 26 October 2024, our immediate recommendations for employers are to:

1. Establish and/or review their central reporting system to ensure that employees can easily and anonymously (if perferred) utilise the service;
2. Ensure that each complaint received is thoroughly investigated and appropriate action is taken to resolve the issue(s);
3. Arrange regular training seminars with reputable trainers (or as provided for in-house, if appropriate) on best practices for dealing with discrimination and harassment in the workplace;
4. Update and communicate to their employees the company’s anti-discrimination/anti-harassment policies;
5. Undertake regular and targeted risk assessments to identify the factors that may lead to instances of harassment. For example, what preventative action can be taken to prevent harassment against those employees who work remotely;
6. Enforce a visible zero-tolerance policy on discrimination and the consequences that will arise if anyone is found to have committed such acts; and/or
7. Form a steering committee comprised of employees (at all levels) to discuss any issues regarding discrimination and harassment and what the company can do to prevent it.

SMB has a wealth of experience in assisting businesses with developing and implementing anti-discrimination policies and procedures as well as the practical steps that ought to be taken to prevent cases of harassment (sexual or otherwise) from occurring. If you need any assistance in relation to this, please do contact our employment team.