The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into place in October. The Worker Protection (Amendment of Equality Act 2010) Act 2023 amends the Equality Act 2010 to introduce a new duty on employers to take reasonable steps to prevent sexual harassment of their employees.
Employers already have a duty to prevent the sexual harassment of employees and can be held liable unless they can prove that they have taken steps to prevent this. The majority of sexual harassment cases in the workplace are between colleagues, yet the employer is responsible for this and should take measures to prevent this.
The new legislation alters the position and requires that employers take a proactive approach to preventing sexual harassment, although there is currently no definition of what ‘reasonable steps’ would be, and it may be up to case law to effectively define this.
What is sexual harassment?
Sexual harassment is unwanted behaviour of a sexual nature. The law (Equality Act 2010) protects the people against sexual harassment at work that violates their dignity and or/creates an intimidating, hostile, degrading, humiliating or offensive environment for them, whether it was intended or not.
This may be a one-off incident or an ongoing pattern of behaviour and can happen in person or in other ways such as via email or social media. It might be from a colleague or someone else you work with, or it could be from a customer or member of the public.
Sexual harassment can happen to women, men and people of any gender identity or sexual orientation. It can be carried out by anyone of the same sex, a different sex or anyone of any gender identity.
Sexual harassment can be very serious such as sexual assault or rape, but there are other more subtle examples, such as:
- Making sexual comments or telling sexually offensive jokes,
- displaying or sharing pornographic or sexual images,
- flirting, gesturing or making sexual remarks about someone’s body, clothing or appearance,
- touching someone against their will.
In some circumstances, these might be considered to be office banter or jokes, but are very likely to meet the definition of sexual harassment under the Equality Act.
Sexual harassment is different to harassment related to a protected characteristic (also unlawful under the Equality Act) but you could experience both types of harassment simultaneously.
For example, if a manager made generally derogatory comments about women which offended one of his female members of staff, this would constitute harassment as sex is a protected characteristic. If the manager made sexual comments about his team member, touched their body unwantedly and made them feel uncomfortable and degraded, then this would be sexual harassment.
Proactive steps to prevent workplace sexual harassment
The change in legislation requires that employers are more proactive in preventing sexual harassment, but what does that look like?
We recommend the following:
- Reviewing your harassment policy to ensure this covers sexual harassment (or if you don’t have a policy, adding one asap) to identify any areas that need strengthening such as reporting and investigation procedures.
- Communicating policies and guidance to all employees and relevant parties and engaging your employees to empower them to report any issues concerning themselves or others.
- Anti-harassment training for all employees, repeated regularly.
- Consider where incidences of sexual harassment may occur – if your workplace is an office environment then harassment is most likely to be between colleagues, but how can you manage sexual harassment by third parties such as customers?
- Consider any power imbalances in the workplace which might increase the likelihood of sexual harassment such as power or gender imbalances or job insecurity and how you might mitigate these.
The consequences of not complying with the current and new legislation could be significant – costly employment tribunals, bad publicity for your company and the Bill also gives employment tribunals the power to increase compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment.
HR Overload are here to support you to avoid these types of issue. We can advise on specific cases, create bespoke policies or audit your current set up. Contact us for more information.
Get in touch to see how we could help you.
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