New duty on UK employers to prevent sexual harassment receives Royal Assent

New laws aimed at protecting women against sexual harassment in the workplace have been finalised. The Worker Protection (Amendment of Equality Act 2010) Act 2023 received Royal Assent on 26 October and comes into force in a year’s time. We’ll look at what HR can do be doing in the meantime to ensure compliance.

The new Act amends the existing Equality Act 2010 to include a new duty for employers to take ‘reasonable steps’ to prevent their employees experiencing workplace sexual harassment. The new duty only applies to sexual harassment, not to harassment based on other protected characteristics such as race, age, sexual orientation, or belief, and whilst it is designed primarily to protect women, it applies equally to people of all genders. 

This was originally a private members’ bill introduced by Liberal Democrat MP Wera Hobhouse and it was amended significantly during its passage through parliament. There are two standout changes that were made, both effectively watering it down. First, in the Lords it was amended to remove the word “all” from “all reasonable steps” and so, seemingly, lowering the bar for employers although time will tell how tribunals interpret that. That change, however, has been offset to some extent by an amendment giving the Employment Tribunals the power to increase any compensation given to an employee by an uplift of up to 25% to any compensation awarded for a breach of the duty. 

The other significant change to the legislation saw removal of the protection against harassment by third parties, such as customers and clients. That was originally included in the Bill but, after debate, was dropped over concerns it would be too difficult for employers to operate in practice.

Overall, the standout feature of the Act is the proactive nature of the new duty – so a new positive obligation to prevent sexual harassment. The removal of the word “all” from the requirement to take reasonable steps is a bit odd and means there’s a difference in the wording compared with the employer’s reasonable steps defence in the Equality Act which is to take 'all reasonable steps” to prevent the discrimination or harassment. Nonetheless, overall we do expect tribunals to expect more from employers in terms of harassment prevention strategies generally.  

So let’s get a view on the new duty and how the legislation might work in practice. Earlier, employment  lawyer Francis Keepfer joined me by phone to discuss it.. First that change from “all reasonable steps” to just “reasonable steps”:

Francis Keepfer: “It's really interesting. There has been lots of case law over the years around the difference between reasonable steps and all reasonable steps but that's mostly played out in contract law, but I think the removal of the word “all” suggests that ETs will look at the highest standard possible, and then drop down from that slightly to reasonable steps. So there's definitely a difference between all reasonable steps and reasonable steps and, as I say, I think they'll probably drop down from the highest standard. There's, there's also a comparison, I think, to be drawn to the all reasonable steps defence which is already in the Equality Act which employers can use us to defend themselves when they're facing any claim of discrimination or harassment, not just sexual harassment as is the case with this piece of legislation and that means it's advisable, but not obligatory, to take those steps and recent case law has suggested that in the context of all reasonable steps it's not enough just to have policies in place. If those policies aren't kept up to date, or training is not implemented regularly, then the defence of all reasonable steps will fail. So, again, thinking of how employment tribunals will interpret that, we're going a step down from that slightly, so they might be slightly more lenient than that.”

Joe Glavina: “As I understand it, any claim for breach of the new duty needs to be linked to a separate claim for sexual harassment. It is not a free-standing claim. Is that right?”

Francis Keepfer: “That's absolutely right. So it's really important to note that with this legislation a claim can't be brought as a free-standing claim. So there already has to be a claim for sexual harassment and then a claim for a breach of the new duty can essentially be tacked on. So it's essentially an add-on to an original claim of sexual harassment. That said, it's also really important to note that the uplift which tribunals can award if there's a breach of the new duty, which is a 25% uplift in compensation, that's not just applied to the claim for sexual harassment, but if an employee is claiming that they've been harassed in other ways the uplift applies to all of the compensation that's been awarded for any type of harassment. So there's potentially a really serious liability for employers so something they need to take really seriously.”

Joe Glavina: “The Bill originally included protection against harassment by third parties such as customers and clients. That was dropped so, as I understand it, the law in that area hasn’t changed at all. Is that right?” 

Francis Keepfer: “Yes, that's absolutely right. So the law around harassment by third parties hasn't changed although, as we know, there was a draft of this legislation originally which included protection against harassment of employees by third parties, such as customers and clients, but that original draft of the legislation hasn't made it through to the final version. So the law hasn't really changed but I think clients and businesses would be remiss to just simply ignore harassment by third parties. Obligations do still exist for businesses in relation to harassment by third parties and they can still be liable if they fail to deal with complaints about harassment by third parties. So although the law hasn't changed at this time, there is still an obligation on businesses to consider that and to deal with it if needed.”

Joe Glavina: “The new law has received Royal Assent but it doesn’t come into force until next October so plenty of time for HR to get their ducks in a row. What’s your advice to them on that?”

Francis Keepfer: “Yes, I think now is as good a time as any for businesses to take stock of their anti-harassment policies and procedures. There is around a year's time, potentially, before the law actually comes into force so now is a good time for businesses to review their policies, perhaps make changes to bring them up to date and to be devising and implementing anti-harassment strategies and procedures. So, that might include things like reintroducing and updating training, making sure there are a well signposted methods for reporting and measures to deal with those reports as and when they come in. I think also what's really important is from a cultural perspective, now presents a really good opportunity for businesses to look introspectively about how they might develop and change their culture to become more inclusive for women and for other minorities. It’s not something they are going to be able to change overnight, but it's something they can potentially start dealing with now so that in a year's time, in two years’ time, in five years’ time, their business is much more diverse and open. So, for example, changes like the language they use towards women, using more inclusive language, having a zero-tolerance policy for any form of harassment or discrimination. Things that might previously have been tossed aside as “banter”, making sure those things are dealt with more appropriately.”

Joe Glavina: “Any final thoughts, Francis?” 

Francis Keepfer: “It's really interesting as well because even though there is now a new positive duty, I suppose one could make the argument that the law hasn't really changed that much - because the claim can't be brought as a free-standing claim the duty will only ever be tested as part of a wider claim for sexual harassment. So I suppose you could say that it's effectively just another box that employers need to tick and it will be interesting to see how tribunals test that because if an employer is facing a claim for sexual harassment and they are pleading the all reasonable steps defence, then I suppose it follows that they will also say that they've ticked the box to prevent sexual harassment under the new duty, and they've ticked the box for reasonable steps given that the standard is, as we've discussed, probably lower than the all reasonable steps defence. So, as I say, it's interesting that even though the law has changed you might argue that it hasn't really changed that much and it's just another box to tick for employers and for tribunals to test.”

The team has written about this new law in some detail in an analysis piece for Out-Law which you may be interested to read. That’s ‘Protecting women against workplace harassment moves up UK political agenda’ and we have put a link to it in the transcript of this programme for you.

LINKS
- Link to Out-Law analysis: ‘Protecting women against workplace harassment moves up UK political agenda’