Changes under the Worker Protection Act means that from 26 October 2024, all employers, big and small are under a radical new positive duty to take reasonable steps to prevent sexual harassment in the workplace. We unpick what that means for you.
What is sexual harassment?
Sexual harassment is unwanted behaviour that either:
- Violates a person’s dignity; or
- Creates an intimidating, hostile, degrading, humiliating or offensive environment for a person.
The Government funded Advisory, Conciliation and Arbitration Service (ACAS) provides the following examples:
- making sexual remarks about someone’s body, clothing or appearance;
- asking questions about someone’s sex life;
- telling sexually offensive jokes;
- making sexual comments or jokes about someone’s sexual orientation or gender reassignment;
- displaying or sharing pornographic or sexual images, or other sexual content;
- touching someone against their will, for example hugging them; or
- sexual assault or rape.
What if they did not mean to offend?
Intention is irrelevant. If the act/behaviour has the effect of the above, it can be sexual harassment. The reverse applies too, if the act was intended to have one of these effects but did not have that effect, it can be sexual harassment.
Who is protected from sexual harassment in the workplace?
The Equality Act 2010 protects employees and third parties (e.g., workers, contractors, job applicants and self-employed persons, clients, customers and members of the public) against sexual harassment at work.
What has changed?
26 October 2024 saw a ‘preventative duty’ imposed on employers. This new duty introduces an obligation on employers to play an active part by taking reasonable steps to prevent sexual harassment from happening, in the form of new sections 40A and 124A of the Equality Act 2010.
Prior to 26 October 2024, employers were (and remain!) liable for harassment committed by their workers in the course of employment. The addition of sections 40A and 124A mandates pro-active behaviour, rather than simply being passive.
The steps taken by the employer will be judged objectively to determine if they were reasonable in all the circumstances.
Whether or not the reasonableness test is met will depend on a range of factors, such as the size and resources of the employer: smaller employers will not be expected to act as extensively as large corporates, but – importantly – doing nothing is no longer an option.
This new proactive duty is not just for employers to take reasonable steps to pre-empt and prevent sexual harassment occurring by staff on other staff, but it also extends to the sexual harassment of third parties on its staff. A typical example of this would be a waiter being sexually harassed by a customer.
What is the effect?
Should the employer be found to have breached their new duty as well as losing a sexual harassment claim, the Employment Tribunal can uplift the employee’s compensation by up to 25%. Indeed, a breach in the new duty is likely to make defending a sexual harassment claim much more difficult. Conversely, full compliance is much more likely to provide the employer with a complete defence and/or the opportunity to shift liability on to the perpetrator.
Enforcement and investigations are now pro-active too. There need not be a sexual harassment event (suspicion of non-compliance will suffice) before the Equality and Human Rights Commission (the Government agency tasked with monitoring and enforcement of Equalities legislation) can investigate or exercise enforcement powers such as compliance notices and injunctions.
What can employers do?
We suggest that you start by reading The Equality and Human Rights Commission’s eight-step guide to assist employer compliance with their new duty. Those eight steps are detailed under the following headline actions:
- Develop an effective anti-harassment policy.
- Engage with staff.
- Assess and take steps to reduce risk.
- Reporting.
- Training.
- Harassment complaint handling.
- Dealing with third-party harassment.
- Monitor and evaluate your actions.
If you read the guide, but don’t know where to start, we can help. From drafting an anti-harassment policy, to guiding you through the complete compliance journey, contact our expert Employment team for more information and advice.