New duty to prevent sexual harassment in the workplace will come into force on 26 October 2024.

The Government has confirmed that the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act) will come in to force on 26 October 2024.

Currently, employers are liable (under the Equality Act 2010) for acts of sexual harassment, unless the employer can show it took “all reasonable steps” to prevent it from occurring, which is a difficult defence as employers can rarely show they have done everything reasonably possible to prevent the harassment. From 26 October 2024, employers will also be required to focus on prevention, due to the new positive duty to take “reasonable steps” to prevent sexual harassment.?

What happens if the employer fails to take “reasonable steps”?

If a claim of sexual harassment succeeds, and the employer is found to have breached the new duty, the employment tribunal will be able to award an uplift in compensation (which is unlimited) of up to 25%. This seems to be a similar approach to the uplift available where an employer fails to follow the Acas Code of Practice on Disciplinary and Grievance Procedures (the Code). However, we will have to wait to see how this new uplift will be assessed, as unlike the Code, it may not be that easy to measure employer compliance.

In addition to the uplift, the Equality and Human Rights Commission (EHRC) will also have the power to enforce, which may include investigations, issuing unlawful act notices and unlimited fines. ?

Developments

Although the Act does not specifically refer to third party harassment, the draft EHRC guidance states that "employers are required to take reasonable steps to prevent sexual harassment of workers by third parties". In addition, commentators have already suggested that the Act, as drafted, extends to third party harassment. We will therefore have to wait and see whether the employment tribunals consider third party harassment when assessing compensation uplifts. It is also worth noting that, in its Plan to Make Work Pay, Labour promised to include protection from third party harassment.?

Key takeaways

• Employers need to prepare for the new legislation now!
• Sufficient policies need to be in place.
• There needs to be training for all staff levels, particularly managers.
• There should be an effective mechanism in place for reporting allegations (and reporting should be encouraged).
• Culture audits and risk assessments should be carried out.
• Previous cases also need to be reviewed, what, if anything, could have been done better?
• Third party harassment should be considered.

If you or your business require any assistance to help prepare for this change, please contact a member of the Employment, Pensions & Immigration department.