Worker Protection (Amendment of Equality Act 2010) Act 2023

Worker Protection (Amendment of Equality Act 2010) Act 2023

Employment Law

In 2023 we saw allegations of sexual assault, harassment, racism and bullying by current and recent UK staff from the fast-food chain McDonalds, as well as various other high-profile institutions.  It is expected that on 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force and in light of this, our Employment Team outlines what this means for employers and practical steps that your business should take to prevent sexual harassment in the workplace.

Sexual harassment

Sexual harassment is strictly prohibited under the Equality Act 2010 and occurs where:

• A engages in unwanted conduct of a sexual nature.
• The conduct has the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

If the above factors are made out, the employee who committed the unlawful act will be liable, as well as potentially the employer through the principles of vicarious liability.  This means that employers will be liable if the act was committed in the “course of employment” and they did not take “all reasonable steps” to prevent the employee from doing the act or “anything of that description”.

Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act)

Notwithstanding the current legal framework, the Act now places a positive duty on employers to take reasonable steps to prevent sexual harassment in the workplace. In July 2024, The Equality and Human Rights Commission (“EHRC”) launched a consultation on its updated guidance on sexual harassment at work, which has now closed. The guidance states that “what is reasonable will vary from employer to employer and will depend on factors such as (but not limited to) the employer’s size, the sector it operates in, the working environment and its resources. There are no particular criteria or minimum standards an employer must meet.”

Secondly, there is no upper limit on the compensation that the Employment Tribunal can award where there has been a finding of sexual harassment. However, the Act provides that Employment Tribunal have the power to increase sexual harassment compensation by up to 25% where an employer is found to have breached this duty. The EHRC can also take additional enforcement steps.

What does this mean? Practical steps for employers

RISK ASSESSMENT

This new duty means that employers should assess the risk of sexual harassment occurring during the course of employment, as well as considering their policies, procedures and training to prevent and reduce the risk of sexual harassment of their workers.

POLICY AND CULTURE

It is crucial that employers have sufficient and up to date anti-harassment policies in place which makes it clear that there is a zero-tolerance to sexual harassment. Having a clear statement of required behaviour in the workplace, as well as work-related social events is essential.  Importantly, these policies must be communicated to employees regularly and will help to ensure that there is a safe and open workplace culture.

Secondly, employers should also have clear grievance and disciplinary procedures and ensure that these are accessible and signposted to employee’s should they experience and/or witness sexual harassment and wish to raise this with the appropriate person. Employers must take such allegations seriously by following a robust and fair procedure, as well as implementing any necessary sanctions within the disciplinary policy.

TRAINING AND UNDERSTANDING

Similarly, CIPD recommends that all staff should undertake regular training sessions to ensure they understand what constitutes sexual harassment and how to address/prevent the same. The EHRC technical guidance outlines that it is good practice for anti-harassment training to form part of all workers’ induction procedures, and therefore employers may wish to consider implementing the same if this is not already the case.  Likewise, it is particularly important for senior leadership and management to undertake training on this new positive duty so they are aware of what is expected of them.

If you require any assistance with employment related matters or human resources legal support, please contact Annalie King, Partner and Head of our Employment Law team at Kerseys Solicitors.

You can contact Annalie King by telephone at Kerseys Solicitors in Ipswich 01473 213311, Kerseys Solicitors in Felixstowe on 01394 834557 or Kerseys Solicitors in Colchester 01206 584584 or email us at [email protected].

Alternatively visit our website and click “Call Me Back” and a member of our Employment Law & HR Services team will be happy to contact you at a time that is convenient to you.