The Worker Protection (Amendment of Equality Act 2010) Bill received Royal Assent on 26 October. Although the new Worker Protection (Amendment of Equality Act 2010) Act 2023 will not come into force until October 2024, UK employers can take steps now to ensure they are prepared to comply.
In July 2021, in the wake of the #MeToo movement and campaigns by women’s groups across the United Kingdom, the UK government committed to imposing a proactive duty on employers to prevent sexual harassment. Those commitments began to take shape when the Worker Protection (Amendment of Equality Act 2010) Bill (Worker Protection Bill) was introduced in 2022 as a private members bill in the House of Commons.
As originally conceived, the Worker Protection Bill sought to strengthen protection for employees by requiring employers to take “all reasonable steps” to protect employees from harassment, including harassment from third parties such as clients or customers. As the Worker Protection Bill moved through Parliament, however, these proposals were watered down, and the new Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act) will now impose a less onerous, though still significant, new duty on employers.
The Act, which amends the Equality Act 2010 (the Equality Act), will introduce a duty for employers to take “reasonable steps” to prevent sexual harassment of employees during their employment, rather than “all reasonable steps.” Following debates in the House of Lords, this new duty will not extend to the prevention of harassment by third parties.
The new duty will apply only to sexual harassment (as defined in the Equality Act) and not to harassment based on other protected characteristics. It will sit alongside and bolster employees’ existing protections from sexual harassment in the Equality Act.
The Act also provides employment tribunals with the power to increase compensation by up to 25% if an employee succeeds in a claim for sexual harassment and an employer is found to have breached the duty to prevent sexual harassment.
Employers should take action now to ensure they will be able to comply with the new duty to take “reasonable steps” to prevent sexual harassment of their employees. Although there is not presently any guidance on what would constitute “reasonable steps,” the Equality Act already contains a defence for employers who can demonstrate they took “all reasonable steps” to prevent sexual harassment. While the Act omits the word “all,” it may be that the employment tribunal will interpret the new duty in a similar way to the existing defence.
Additionally, the Equality and Human Rights Commission has stated that it plans to update its technical guidance on sexual harassment to reflect the new duty and will set out steps that employers should take to comply with the law.
In the meantime, employers may wish to prepare for the Act, including by taking the following steps:
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