Changes to the law surrounding workplace sexual harassment
In the post #metoo era, workplace harassment has become an increasingly prevalent topic. Whilst many employers are taking it into their own hands to improve culture, conduct and practice, legislation coming into force next year will introduce further legal obligations in this regard.
What changes are on the horizon?
The Worker Protection (Amendment of Equality Act 2010) Act (the "Act") has now received Royal Assent and will come into force in late October 2024. In summary, the Act:
- introduces a new duty on employers to take reasonable steps to prevent sexual harassment of their employees in the workplace; and
- provides employment tribunals the power to provide an uplift of up to 25% to compensation where an employer has failed to take reasonable steps to prevent sexual harassment.
Has the Act been "watered down" from earlier proposals?
An earlier draft of the legislation introduced a legal obligation on employers to protect their employees against harassment by third parties, such as customers and clients. This would have been a significant change. However, following concerns aired in the House of Lords about such a clause jeopardising free speech and increasing the regulatory burden on employers, this additional obligation was removed from the draft bill.
Another aspect which the draft legislation was originally planning to introduce, and which has now been amended, was to require employers to take all reasonable steps to prevent sexual harassment in the course of employment. Following debate in the House of Lords the word "all" has been removed from the relevant clause, meaning that employers will be required to take "reasonable steps" to prevent sexual harassment of its employees in the course of their work but not every single step. This amendment appears to be primarily as a result of concerns that "all" reasonable steps seems to imply an almost infinite number of steps that employers could take, and that would place a huge burden on employers.
Whilst there has been commentary about proposed changes being "watered down" the final version of the Act still introduces material changes for employers.
This new Act introduces a significant change for employers by creating a legal obligation to take reasonable steps to prevent sexual harassment of their employees. This is a pro-active duty and employers will need to consider how they can comply with this obligation.
Employers should also keep an eye out for the updated Equality and Human Rights Commission technical guidance which will be updated in due course to reflect these changes – we'll keep you updated on this.
As harassment unfortunately continues to be an issue in many workplaces, employers should:
- review and update relevant policies to take into account these new changes;
- continue to roll-out and refresh their training on appropriate behaviour in the workplace;
- ensure that they have adequate reporting procedures in place and that issues are properly investigated.
We can assist you with all of the above.
We have a wealth of experience on this topic and in delivering training in this area, so please do get in touch with Paul Reeves, Natalie Edwards, Leanne Raven or your usual Stephenson Harwood contact if you are interested.