Preventing sexual harassment – the employer’s new statutory duty

Employers will have a new legal duty to take reasonable steps to prevent sexual harassment of their employees in the course of their employment, under legislation which has now received Royal Assent.

The Worker Protection (Amendment of Equality Act 2010) Bill was introduced as a Private Member’s Bill, which was backed by the Government. It previously included provisions reintroducing liability on employers for third party harassment, but these were removed from the Bill following amendments in the House of Lords. The Bill has now received Royal Assent.

Preventing sexual harassment – the new statutory duty

The effect of the legislation is to amend the Equality Act 2010. It places a duty on employers to take reasonable steps to prevent sexual harassment of their employees. What will amount to ‘reasonable steps’ is not defined in the legislation and is likely to depend on the circumstances in each case.

The new duty only relates to ‘sexual harassment’. This is defined in the Equality Act 2010 as:

unwanted conduct of a sexual nature
which has the purpose or effect of violating an employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee.

The new duty can be enforced by the Equality and Human Rights Commission (EHRC) or by an Employment Tribunal where an employee issues a successful claim for sexual harassment.

Uplift in compensation

Where an employee issues a successful claim of sexual harassment and is awarded compensation, the Employment Tribunal must consider whether, and to what extent, the employer has breached the new statutory duty. If the duty has been breached, the Tribunal may increase the compensation awarded by up to 25%.

Comment

The EHRC commented that despite existing protections, ‘evidence shows that workplace sexual harassment remains widespread, often goes unreported, and is inadequately addressed by employers.’ It considers the Bill an important part of protecting employees.

The EHRC has confirmed that it will update its technical guidance on sexual harassment to reflect the new duty. The guidance, which will be subject to consultation, will set out the steps that employers should take to comply with the law.

The Act will come into force one year after the day on which it was passed.

31 October 2023

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