From October 2024, employers will need to comply with a new duty to take ‘reasonable steps’ to prevent sexual harassment of employees. This follows the passing of the Worker Protection (Amendment of Equality Act 2010) Act 2023. Under the Act, tribunals will have the power to increase compensation by up to 25 per cent if it finds that an employer has breached this duty.
Originally a private member’s bill proposed by Wera Hobhouse MP, the Act has had two significant changes implemented during its passage through parliament, both of which reduce the weight of the new obligations:
- The original bill was drafted so that employers were required to take ‘all reasonable steps’ to protect employees from sexual harassment. This obligation has been reduced so that employers are now only required to take ‘reasonable steps’.
- As originally drafted, the bill sought to reintroduce protection against harassment of employees by third parties, such as clients and customers. This duty has now been scrapped.
One reason for the removal of the third-party obligations was to assuage fears about jeopardising free speech, as well as concerns about the cost to businesses and excessive state intervention.
In the Lords, members suggested that the ‘all reasonable steps’ requirement could lead to the absurdity of ‘HR-style rules’ being imposed upon customers in a similar way to employees. As highlighted by Hugh Osmond, head of Punch Taverns: “How could we stop a group of people coming into a pub and having an offensive chat in the corner? You may even need extra staff walking around the pub policing conversation. You wouldn’t find rules this strict in China or Russia.”
Impact of the changes
Arguably, the removal of the requirement to take ‘all’ reasonable steps to prevent sexual harassment places a lower bar on businesses than for other discrimination and harassment claims for which, to successfully defend their actions, employers must show they took ‘all reasonable steps’ to prevent the discrimination or harassment.
Additionally, employees cannot make a freestanding claim under the Act. Instead, a claim for a breach of the new duty must be ‘tacked on’ to an existing claim for harassment.
Crucially, however, where an employee brings a claim for multiple forms of harassment (eg, based on age or sexual orientation), the 25 per cent uplift in compensation will apply not just to the sexual harassment element, but to all of the compensation awarded for the claim. This therefore has a significant potential impact on the quantum that can be awarded in harassment claims.
Employers should be aware that even though the Act has removed the express requirement to prevent third-party harassment, they may still be liable under the existing legislation if they fail to adequately deal with complaints from employees relating to third-party harassment.
What does this mean for employers?
While the Act certainly is a watered version of its original draft, organisations should still be mindful of this new duty and consider whether they are taking reasonable steps to protect employees from sexual harassment. Failing to do so could have costly consequences, as well as being damaging to the company’s reputation and culture.
To demonstrate reasonable steps, employers should ensure they are reviewing and refreshing their harassment policies and reporting procedures, conducting regular training sessions with employees and taking any harassment complaints seriously. Simply having policies and training in place will not be enough: companies should be taking proactive action, such as conducting regular workplace reviews, to ensure that the measures in place are effective.
This is also a good opportunity for employers to conduct a review into their company’s culture to improve inclusivity and identify areas for improvement. This can be achieved by conducting audits into the effectiveness of company training, policies and reporting structures. Introducing a staff liaison committee is also an effective way of implementing these measures and demonstrating the business’s commitment to preventing harassment.
Francesca Charlton is an associate and Kayleigh McKee a trainee solicitor at Charles Russell Speechlys