hidup.uk

The Worker Protection (Amendment of Equality Act 2010) Act 2023 (“the Act”) received Royal Assent on 26 October 2023 and is due to come into force in October 2024. The purpose of the Act is to ensure that the law will continue to offer the same protection in relation to pregnancy, maternity and breastfeeding, indirect discrimination, access to employment and occupation, equal pay and the definition of disability when retained EU law will cease to apply to the UK statute book after the end of 2023. However, there are some additional changes.

Amendment of the Equality Act

The Act amends the Equality Act 2020 to:

• Introduce a positive duty on employers to take reasonable steps to prevent sexual harassment of their employees.
• Give employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment.

This is therefore an important piece of legislation in relation to sexual harassment in the workplace. The changes shift the focus to a more preventative approach and imposes a positive duty on employers.

Current Law

The law provides that employers are liable for harassment (including sexual harassment) committed by an employee in the course of employment, unless it can show it took all reasonable steps to prevent its employee from committing a particular discriminatory act. This is often referred to as “reasonable steps defence” and is used when defending claims. The specifics of ‘reasonable steps’ can vary based on factors like company size and work environment, but examples include having an equal opportunities policy or an anti-harassment and bullying policy. The employer must also actively review and implement the policies, by providing sufficient and regular training to employees.

The Act will require employers to take action to comply with their positive duty to prevent sexual harassment. Employers should therefore use the opportunity to support their workforce and those who are particularly vulnerable.

Financial Implications

Tribunals now have the power to uplift compensation for sexual harassment claims by 25% if it is found that an employer has breached their duty to prevent sexual harassment. However, it is important to note that employees cannot make a standalone claim for a breach of the preventative duty, and so a claim for this must be pursued in conjunction with an existing claim.

Enforcement action can also be taken from the Equalities and Human Rights Commission and potentially lead to fines if employers are failing to meet the preventative duty.

This means that employers could face significant financial implications from both potential tribunal claims and potential fines if they fail to take adequate preventative measures.

How can employers prepare?

The Act is expected to come into force in October 2024. In anticipation, there are various ways in which an employer can prepare.

• Review existing anti-harassment policies;
• Provide training sessions for all employees on recognising and preventing sexual harassment;
• Ensure there is a reporting register for complaints about all forms of harassment;
• Proactively identify risk areas and update the risk assessment accordingly;
• Consider third-party facing steps like installing visible signage that threats, violence and harassment will not be tolerated.

The commentary is that board/senior level engagement is needed in all sectors to ensure the legislation is taken seriously.

The new legislation provides an opportunity for employers to review their current policies and take proactive measures to comply with their duty to prevent sexual harassment. These measures should work towards creating a safer and more positive workplace environment, which in turn can improve employee morale and productivity.

If you are an employer and would like help preparing for the changes to the Equality Act please do contact a member of our Employment team.

We publish blogs and social media posts to give a general overview of legal and commercial issues, relevant at the time of publication, which we hope you will find interesting. Please note that legal rules often change depending on the specific facts of a situation. The law also changes over time following changes in legislation or new court cases. We do not actively update our blogs or posts once they are published to reflect changes in the law.

As such, our blogs and posts are not intended to advise you on the law and must not be relied upon as legal advice. If you require advice on a particular issue then please contact us and we will be pleased to help.