As of the 26^th October 2024, the Worker Protection (Amendment to the Equality Act 2010) Act 2023 will impose a new duty on Employers to “take reasonable steps to prevent” sexual harassment.

Under the current law:

1. Employers may be vicariously liable for the actions of their employees during the course of their employment, including when employees engage in conduct amounting to sexual harassment.
2. The duty on Employers is “reactive” to instances of sexual harassment, for example by requiring the Employer to investigate and implement disciplinary action in the event of such conduct occurring.

This new duty is the first time a positive obligation is imposed on Employers to prevent sexual harassment from occurring in the workplace in the first instance.

What are “reasonable steps”?

The “reasonable steps” to be taken by Employers will differ from business to business, and are likely to differ for each employee or group of employees.  For example, some roles may be at a higher risk of experiencing sexual harassment and therefore more action may be required, whereas others such as home-working roles may require less action to be taken.

Step 1 – Responsibility

In order to ensure that each business is monitoring their compliance with Anti-Sexual Harassment duties, we recommend that someone within the business is appointed to be formally responsible for the Anti-Sexual Harassment policies and procedures.

The appointed person should ensure that the relevant policies are regularly reviewed and updated where necessary and, if not yet in place, ensure that policies are adopted as soon as possible.

Step 2 – Policies

The Responsible Person should ensure that the business has appropriate Anti-Sexual Harassment policies in place.

The policies will need to ensure that there is a safe and confidential way in which employees can disclose issues relating to sexual harassment.  These policies are likely to mirror and work alongside the business’s whistleblowing, disciplinary, and grievance policies.

Step 3 – Risk Assessments

We recommend that the next step for all Employers should be to conduct risk assessments for their business so that they can identify any particular areas of the business or activities undertaken that are at a higher risk.

The Appointed Person may also be responsible for conducting, regularly reviewing and updating the business’s risk assessments to ensure that any new issues that are identified are addressed promptly.

Step 4 – Action

The business should use the results of the risk assessments to implement and additional policies or updates to the pre-existing policies to prevent sexual harassment of their employees.  These may target specific groups of employees, such as having a policy to address lone-working or in relation to instant messaging services used within the workplace, as well as policies relating to the business as a whole.

Any allegations of sexual harassment must be taken seriously and addressed without undue delay and in accordance with the relevant policy.  A record should be kept in relation to any and all allegations and the action taken to address them.

Businesses must be mindful that the disclosure of Sexual Harassment may also amount to Whistleblowing, and care must be taken to ensure that the relevant policies and guidance are followed.

What are the consequences?

The new duty is set out in the new section 40A of the Equality Act 2010, and a failure to take such “reasonable steps” to protect their employees may result in an uplift of up to 25 per cent on any damages awarded by an Employment Tribunal in relation to a claim of Sexual Harassment under the Equality Act 2010.

In accordance with Section 26 of the Equality Act 2010, Employers may only be vicariously liable for the sexual harassment of their employees if the conduct is by the business’ employees or workers; this means that there is no current remedy if an Employer fails to protect employees from sexual harassment by third parties.

Furthermore, businesses should be aware that a breach of the new duty or a failure to take action in relation to Sexual Harassment has the potential to amount to a breach of the implied term of Mutual Trust and Confidence and may give rise to a claim for Constructive Unfair Dismissal.

Next Steps

If you would like to speak to someone about updating your policies in relation to Sexual Harassment, or if you would like to speak to someone about a potential breach of your employment rights, please contact either Jason Alcock or Victoria Ramshaw in our Employment and Dispute Resolution Team on 01543 263 456 or by email to jalcock@ansons.law or vramshaw@ansons.law.

If you would like to be kept up to date with Ansons news please follow us on Facebook, LinkedIn or Twitter.