Sexual Harassment in the Workplace: changes to the law and your obligations as an employer

The Worker Protection (Amendment of Equality Act 2010) Act 2023, also known as Chapter 51 of the 2023 legislative updates, marks a significant step towards enhancing workplace protections against sexual harassment in the UK. This amendment introduces robust measures aimed at creating safer, more respectful work environments, addressing long-standing issues within the scope of the Equality Act 2010.

A critical component of this amendment, that comes into force in October 2024, is the enforcement of a proactive duty on employers to prevent sexual harassment. Previously, the duty was predominantly on employees to report incidents of harassment after they had occurred. The new amendment shifts this responsibility to employers obliging them to take all reasonable steps to actively implement preventative measures. The aim is to encourage a culture of respect and vigilance, thereby reducing the risk that sexual harassment would even take place.

Employers should consider their liability for third party harassment. Whilst it is not explicitly detailed in the amendment, under the Equality Act 2010, an employee could raise a successful claim for direct discrimination against their employer if, for example, it was shown that an employer’s failure to deal with third-party harassment was because of a protected characteristic. Equally, there may be situations in which third-party harassment could form the basis for an indirect discrimination claim, if Employers take no action at all to protect employees. 

Where an employment tribunal finds that to any extent there has been sexual harassment and the employer duty has been breached, then the tribunal may order an uplift of up to 25% to the compensation awarded, in respect of the sexual harassment claim.  

The current timeframe for raising a claim is three months. However, ACAS states that if a claim is not filed in time, then a tribunal may extend the time limit if it has just and equitable reasons to do so. They may consider the surrounding circumstances and the effect on the claimant to apply leniency. Furthermore, the Labour government are proposing to extend the timeframe for raising a claim to six months from the date of the last incident.

What should employer now do?

Under the Worker Protection (Amendment of Equality Act 2010) Act 2023, employers are required to take proactive and reasonable steps to prevent sexual harassment in the workplace. Here are some key measures that employers must implement:

1. Clear Anti-Harassment Policies: Employers should develop and maintain clear, comprehensive anti-harassment policies. These policies must define what constitutes sexual harassment, outline the procedures for reporting incidents, and detail the consequences for those in breach of the policy. The policies should be easily accessible to all employees and can form part of an existing company policy such as EDI, or Anti-Bullying and Harassment policy or it can be standalone.
2. Training and Education: Regular training sessions should be conducted for all employees, including management, to educate them about sexual harassment, the company’s policies, and the importance of maintaining a respectful workplace. Training should also include how to recognise and respond to harassment. This can also be covered in regular team meetings/briefings or ‘toolbox talks’.
3. Effective Reporting Mechanisms: Employers must establish reliable and confidential reporting mechanisms for employees to report incidents of harassment. This can include hotlines, online reporting systems, or designated team members within the organisation who are trained to handle such complaints. Keeping records of all complaints will allow businesses to spot trends and monitor actions.
4. Prompt and Thorough Investigations: When a report of sexual harassment is made, employers must promptly investigate the complaint. Investigations should be thorough, impartial, and conducted with sensitivity towards the complainant. Where a business does not have the capacity or training to undertake such a sensitive and often complex investigation, they can seek support from an independent and skilled investigator, typically appointed from an external provider to conduct the investigation on their behalf.
5. Support for Victims: Employers should provide support to victims of sexual harassment. This can include offering counselling services, making accommodations in the workplace if necessary, and ensuring the victim is not subject to retaliation. These support mechanisms can usually be provided if the employer has an Employee Assistance Programme, but separate counselling or support services can also be provided where the victims can go for help.
6. Regular Monitoring and Review: Employers should regularly review their anti-harassment policies and procedures to ensure they are effective. This includes monitoring the workplace climate, conducting employee surveys, and making necessary adjustments based on feedback and changes in the law.
7. Accountability for Third-Party Harassment: Employers must also take steps to prevent harassment by third parties, such as customers, clients, suppliers, or contractors. This can involve training employees on how to handle such situations and setting clear expectations with third parties about acceptable behaviour.
8. Senior Leadership & Management Commitment: The commitment to preventing sexual harassment must be demonstrated by the top management. This includes leading by example, enforcing policies consistently, and ensuring that the issue is given priority within the organisational culture.

By implementing these reasonable steps, employers will not only comply with the Worker Protection Act 2023 but also be cultivating a safer and more inclusive workplace environment.