The Worker Protection (Amendment of Equality Act 2010) Act 2023 (the ‘2023 Act’) will come into force later this week – on 26 October 2024. The 2023 Act imposes a new duty on employers to take reasonable steps to prevent sexual harassment in the workplace.

What is sexual harassment?

Sexual harassment is prohibited in the workplace under the Equality Act 2010.

Sexual harassment is defined as unwanted behaviour of a sexual nature that has the purpose or effect of violating the dignity of a worker or creating an intimidating, hostile, degrading, humiliating or offensive environment.

The EHRC technical guidance provides examples of unwanted conduct of a sexual nature, such as:

• Sexual comments or jokes
• Displaying sexually graphic pictures, posters or photos
• Suggestive looks, staring or leering
• Propositions and sexual advances
• Making promises in return for sexual favours
• Sexual gestures
• Intrusive questions about a person’s private or sex life or a person discussing their own sex life
• Sexual posts or contact on social media
• Spreading sexual rumours about a person
• Sending sexually explicit emails or text messages
• Unwelcome touching, hugging, messaging or kissing.

What is the New Duty?

The 2023 Act will place a proactive duty on employers to take reasonable steps to prevent sexual harassment in the workplace.

This is an anticipatory duty, meaning that employers should not wait until there has been an incident of sexual harassment before taking action. Employers should anticipate circumstances in which workers may be subject to sexual harassment in the course of employment and take reasonable steps to prevent this.

Does it cover Sexual Harassment by Third Parties?

The 2023 Act does not specifically cover harassment by third parties. However, the EHRC’s technical guidance requires employers to take reasonable steps to prevent sexual harassment of workers by third parties, such as clients and customers. Due to this uncertainty and as the Government intends to expand the duty to cover third-party sexual harassment, we would strongly advise employers to consider the risk of workers coming into contact with third parties and to take reasonable steps to prevent harassment in these instances.

What compensation can be awarded for a failure to comply?

There is no stand-alone claim that can be brought. However, if the Tribunal finds that the employer failed in its duty, it can increase compensation awarded in cases of harassment which involved sexual harassment, by up to 25%. In addition, the EHRC’s powers of enforcement will apply which include the ability to:

• Investigate the employer
• Issue an unlawful act notice
• Enter into a formal, legally binding agreement with an employer to prevent harassment; and/or
• Ask the Tribunal for an injunction to stop an employer from committing an unlawful act.

What can you do as an employer to meet the new duty?

The reasonable steps taken will vary from employer to employer depending on the size of the employer, the nature of the workplace, the risks present in the workplace, the types of third parties that workers may have contact with and the likelihood of workers coming into contact with such third parties.

The EHRC technical guidance advises that employers are “unlikely to be able to meet the requirement of the preventative duty to take reasonable steps to prevent sexual harassment of their workers, if they do not carry out a risk assessment.” Therefore, employers should make assessments of the risks of sexual harassment occurring in the course of employment.

When undertaking risk assessments, the EHRC has advised that employers should:

1. Consider the risks of sexual harassment occurring in the course of employment;
2. Produce an action plan setting out the preventative steps that they will take to address the identified risks;
3. Consider which of those steps it would be reasonable to take; and
4. Implement those reasonable steps.

The reasonable steps could include:

Developing effective policies and procedures

Employers should review their current policies and procedures and ensure that they take account of the new duty.

Employers should have different policies to deal with sexual harassment and harassment related to protected characteristic or have one policy that clearly distinguishes between the different forms of harassment.

The policy should define sexual harassment and give examples of what it is. It should also set out what everyone’s responsibilities are for preventing and tackling sexual harassment in the workplace. The procedure for handling sexual harassment complaints should be clear.

Training and development

There should be regular training sessions for all staff so that they understand what sexual harassment is and how to identify and prevent it. The training should be tailored to the organisation, containing relevant examples and should be regularly updated. The impact of training should be monitored and reviewed.

Reporting channels and investigating

There needs to be clear and accessible reporting channels for staff to report incidents of sexual harassment. Any incidents reported should be investigated promptly, fairly and thoroughly.

Organisational and cultural change

It is important that owners and managers lead by example. Senior individuals within an organisation have a significant influence on the working culture and can help reinforce the expectations of dignity, respect and inclusion in the workplace.  A zero-tolerance workplace culture should be adopted.

How does the Employment Rights Bill 2024 affect the 2023 Act?

On 10 October the Labour Government’s Employment Rights Bill 2024 (‘the Bill’) was published and this sets out further proposed amendments to the law on sexual harassment. The Bill suggests that the duty on employers to take “reasonable steps” be amended to “all reasonable steps”. Thereby, significantly increasing the extent of the duty placed on employers to prevent sexual harassment in the workplace.

Further, the Bill introduces a duty on employers to take all reasonable steps to prevent harassment of an employee by third parties.

These proposals will now be consulted upon, and it is expected that reforms will not be implemented until 2026. For the time being therefore employers should focus on taking immediate steps to comply with the requirements of the Act and the imminent duty to take reasonable steps to prevent sexual harassment. These steps should be kept under regular review by employers whilst the consultation process on the Bill’s proposals to extend the duty progresses.

How can we help?

We can help prepare you for this change by:

• Assisting with ensuring that you have taken reasonable steps to prevent sexual harassment within your organisation.
• Reviewing your sexual harassment policies and procedures to make sure they are up to date and work in practice.
• Providing training tailored to your organisation on how to prevent sexual harassment in the workplace.

If you have any questions, please do not hesitate to contact the Geldards Employment Team below.