Solicitor Dayna Rodrigues, in our Employment Law team, explains.
The Worker Protection (Amendment to Equality Act 2010) Act 2023 will come into force on 26 October 2024, and will effectively enhance current protections against sexual harassment in the workplace.
Notably, employers will be under a specific duty, by virtue of section 40A Equality Act 2010 (EQA 2010) to take “reasonable steps to prevent (the) sexual harassment of (their) employees”, in the course of their employment.
Before considering the new proactive employer duty – here is a reminder of the fundamentals relating to sexual harassment, in the employment context:
What is sexual harassment?
There are three different types of harassment under s26 EQA , namely harassment related to “Protected Characteristics” (s26(1)), sexual harassment (s26(2)) and harassment related to gender reassignment or sex (s26(3)).
In summary, current legislation defines “sexual harassment” as:
- unwanted conduct of a sexual nature by (the Employer/person acting in their employment); and
- the conduct has the purpose or effect of violating (an Employee’s) dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Employee.
The EQA 2010 does not only cover “employees” in the strictest sense; it can (depending on the facts) cover a much wider category of individuals including workers, employees and job applicants (amongst others) from sexual harassment.
Who is responsible?
In accordance with the EQA 2010, anything done by an individual in the course of their employment must also be treated as having been done by their Employer. Employers therefore have vicarious liability for the actions of their staff carried out in the course of their employment. This does not mean that the individual committing the sexual harassment will avoid being sued for their actions in the Employment Tribunals. Frequently the (alleged) harasser will be named as a Second Respondent in such proceedings.
It is important to remember that it is not just sexual harassment that occurs on office premises that may be relevant; sexual harassment outside of the working environment may still be covered by the EQA and give rise to a claim against the Employer/harasser. Broadly speaking, this could include work Christmas parties, after party drinks following a work Christmas party, events where staff are still in uniform, after work drinks and so on. If the activity is in any way related to work, then there is a risk the business could be vicariously liable for any sexual harassment that occurs.
What does the new duty require and what are the potential consequences of failing to comply?
The new duty under section 40A EQA places an employer under a duty to take anticipatory measures to prevent its employees being subjected to sexual harassment. Employers should therefore take time to:
- review and consider updating their existing workplace policies;
- update their risk assessments to try and identify situations where employees could be at risk of experiencing sexual harassment in order to take preventative action;
- update and carry out staff training; and
- monitor all of the above.
Pending updates in light of the introduction of the new duty, ACAS’ current guidance includes suggestions on aspects to consider for sexual harassment policies, workplace training, risk assessments, creating the right workplace culture and improving equality, diversity and inclusion.
Possible outcomes in the event of a breach
If an employee experiences sexual harassment in the course of their employment, this will typically give rise to the raising of a formal grievance at work and/or pursuing a claim in the Employment Tribunals.
If their claim for sexual harassment (under s. 26(2) EQA) is ultimately successful in the Tribunal and the Tribunal orders the Respondent/s to pay compensation, the Tribunal must go on to consider “whether and to what extent the Respondent has also contravened” its section 40A duty, and it can award an uplift in the compensation awarded to the Employee/Claimant by up to 25% depending on its findings in relation to any contravention.
Our specialist Employment Law team can advise on the above and all aspects of Employment Law.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
