The new law on sexual harassment has been passed
27 October 2023
The new law on prevention of sexual harassment has received Royal Assent. What do employers need to know, and what should they be doing now?
The Worker Protection (Amendment of Equality Act) Act makes a significant change to the law on an employer’s obligations to protect employees from sexual harassment. Although it has been watered down compared to the original proposals, the new law will still create an important new duty that employers will need to take seriously.
What is the new law?
There is a new duty to take “reasonable steps” to prevent sexual harassment of your employees in the course of their employment. This applies to sexual harassment as defined in the Equality Act, which means unwanted conduct of a “sexual nature”. Although the law has primarily been introduced to protect women, it applies equally to people of all genders.
The law already provides a defence to a harassment claim if the employer can show they had taken all reasonable steps to prevent it from happening. This meant it was advisable to take such steps, but there was no actual requirement to do so. The new law goes further by placing a separate legal obligation on all employers to take proactive measures to prevent sexual harassment.
What hasn’t changed?
The new duty only applies to sexual harassment. It does not apply to harassment based on other protected characteristics such as race, age, sexual orientation or belief. It also does not apply to harassment which is related to sex but is not conduct of a sexual nature.
The initial draft of this law included a proposal to re-introduce protection against harassment of employees by third parties, such as customers and clients. As we wrote about here, this provision was removed following debates in the House of Lords, and it was not re-introduced in the final Commons debate.
What are “reasonable steps”
There is no guidance on this in the new law. The employer’s defence in the Equality Act uses similar wording – that the employer took “all reasonable steps” to prevent the discrimination or harassment. The word “all” was removed from the new duty during the parliamentary process, meaning this is a somewhat lower threshold. Nevertheless, it seems likely that Employment Tribunals will interpret this in a similar way to the existing employer’s defence.
A recent Employment Tribunal decision on workplace discrimination against a trans person (Fischer v London United Busways) considered in some detail what would be expected of an employer to make out the “all reasonable steps” defence. Although the employer in this case had appropriate policies in place, they had failed to take other steps such as keeping the policies up to date, making them available to all staff, and implementing regular training. We discuss this aspect of the case in episode 1 of our In-House Employment Lawyers Coffee Break (from 4 minutes in).
How will it be enforced?
A claim for breach of the new duty can be made in the Employment Tribunal but it must be ‘attached’ to a claim for sexual harassment. It is not a free-standing claim. If an employee succeeds in a claim for sexual harassment, and the employer is found to have breached its duty to take reasonable steps to avoid the sexual harassment, the Employment Tribunal will be able to uplift compensation by up to 25%. Although this is only triggered if there has been sexual harassment, the uplift itself will apply to all of the compensation that has been awarded for any type of harassment. This could be expensive if an employee has succeeded in a claim for multiple incidents of harassment.
The duty can also be enforced by the Equality and Human Rights Commission (EHRC), using its existing powers of enforcement which include investigations. To date, the EHRC has used its enforcement powers sparingly, but that may be set to change.
When does the new law come into effect?
The new law received Royal Assent on 26 October 2023 and comes into force one year after this.
Will there be any more guidance?
The EHRC has indicated that it will update its technical guidance on sexual harassment and harassment at work, which it published in January 2020, to reflect the new duty.
Do I need to address harassment of staff by third parties?
Although this is not prohibited by the new law, you cannot simply ignore this issue. Under the current law, an employer still risks being liable for discrimination or harassment itself if it ignores complaints about harassment by third parties and continues to put vulnerable employees at risk. And irrespective of legal risks, it simply is not good practice (and reputationally damaging) to fail to prevent staff from being harassed at work.
Will things change under a Labour government?
Although Labour Peers supported the amendments to the new law, Baroness Thornton said she could not promise that a Labour government would not return to the issue. Since then, Angela Raynor (the deputy leader of the party) has said that they would re-introduce specific liability for third party harassment. They would also make it a duty to take “all” reasonable staps to prevent sexual harassment. If Labour wins the next election, it looks likely that more change will be coming soon.
What should I be doing now?
Although the law does not change until October 2024, you should take steps now to ensure that you are well placed to show you are taking reasonable steps to prevent sexual harassment. This will also help you to show that you have taken all reasonable steps to prevent harassment of any kind, which is a valuable part of DE&I initiatives as well as helping to defend claims.
We have previously written about refocusing on harassment and practical steps, including the concept of sexual harassment risk assessments. Some key steps include:
- Creating or updating central reporting registers for complaints about all forms of harassment.
- Updating and re-circulating anti-harassment and speak up policies and ensuring that policies focus on inclusion as well as equality.
- Carrying out up to date, tailored and situational training to help staff members avoid the threat of harassment, and to give those who witness harassment (bystanders) the means to safely intervene or support victims. As written about in the above article, training which is ‘stale’ or simply a tick-box exercise is unlikely to be seen as a reasonable step to prevent harassment.
- Conducting targeted risk assessments to identify risk factors and what action can be taken.
- Ensuring there is a clear avenue for reporting complaints about harassment and that all complaints are investigated and dealt with effectively – even if they are historic ones.
- Considering third-party facing steps like installing visible signs in areas where customers interact with staff members explaining that threats, violence and harassment will not be tolerated and providing a means for bystanders to report instances of staff harassment.
It will be important to factor in any new requirements from the expected EHRC statutory Code of Practice, as well as the existing guidance.
You might also consider consulting on the steps you propose to make with employee representative bodies and employee resource groups (e.g. Women @ Work groups).
The training team at Lewis Silkin work regularly in this area, devising training programmes highlighting issues around harassment and bullying and promoting respect in the workplace to staff, managers and HR teams. If you would like to have a conversation about how we can support you with training, listening exercises, or HR consultancy services in the area of anti-harassment, diversity and inclusion, please contact our head of training Lucy Hendley or your usual Lewis Silkin contact.