New Legal Duty to prevent Sexual Harassment in the Workplace through the Worker Protection (Amendment of the Equality Act 2010)

The long awaited new legal duty placed upon employers to prevent sexual harassment within the workplace is about to come into place on 26 October 2024 giving the Equality and Human Rights Commission (“EHRC”) new powers. It should be noted that the EHRC also has the authority to take enforcement action in the event that an organisation fails to take reasonable steps to prevent such sexual harassment and enforcement does not depend on actual incident of harassment having to actually take place.

The Equality Act 2010 defines sexual harassment as unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

The Worker Protection (Amendment of the Equality Act 2010) will become effective on 26 October 2024, and strengthens the existing law to protect against unwanted sexual harassment in the workplace. The EHRC will have the power to enforce penalties on businesses that fail to be proactive in assessing risk and identifying action. Also, there must be regular reviews of the procedures a business puts in place to achieve this to ensure that the processes are effective.

Daniel Theron, a partner, commented “the new law applies, not only to individuals who are directly employed but to contractors, people who are employed on a self-employed basis and job applicants. Effectively, anyone who comes into contact with the business connected with employment should not be sexually harassed nor should a third party connected to the business harass the employees” Daniel further comments. “sexual harassment is under-reported and can cause immense distress to the victim and can do real damage to a person’s mental health and also derail their career if an employee feels that they have no alternative than to resign. Employers will have to be seen to put in place effect measures and properly address any complaints.”

Giambrone & Partners employment lawyers point out that employers must review the attitudes and behaviours in their workplace and take steps to eliminate the potential for a workplace culture that can lead to offensive behaviour, such as banter that can go too far, over-familiar approach by senior staff to junior staff and also not fully recognising the issue when a valid complaint is made. 

Giambrone and Partners can advise and assist foreign businesses operating within the UK that may have cultural differences that may make the changes required for the new law more difficult to implement, and can explain to staff, third party workers and customers the effect of the new law and why it must be adhered to. Further, we are in a position to advise on policy changes necessary under the new stricter regime, which in the interests of employers and employees alike.

Sexual harassment can take various forms, usually it is directed at a particular individual but this is not always the case, it can be the general culture in workplace where sexual comments and sharing of sexual images is commonplace or telling inappropriate jokes.

Advisory, Conciliation and Arbitration Service (“ACAS”) also describes the following as some of the types of behaviour that is considered to be sexual harassment:

• making sexual remarks about someone's body, clothing or appearance;
• asking prying questions about an individual’s sex life;
• making sexual comments or jokes about someone's sexual orientation or gender reassignment;
• displaying or sharing pornographic or sexual images, or other sexual content;
• touching someone against their will, for example hugging them;
• implying that promotion will only be gained by in exchange for sexual favours;
• sexual assault or rape.

In order for an employer to avoid vicarious liability and fall foul of the new law, they should set out to all employees what is considered unacceptable behaviour and the consequences of such behaviour so that no employee is absolutely in doubt as to penalties they will incur should the behave in such a way. 

The new law makes provision for an increase in compensation to the victim of sexual harassment if an employment tribunal considers that the employer did not adequately meet its preventative duty to take ‘reasonable steps’. This can include an additional uplift of up to 25%, should the employment tribunal make such findings.

Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission, said, “…employers will need to take reasonable steps to safeguard their workers. We have updated our guidance to ensure they understand their obligations and the kinds of steps they can take. We will be monitoring compliance with the new duty and will not hesitate to take enforcement action where necessary...”

Giambrone and Partners’ employment lawyers note that behaviour that is regarded as intimating, hostile, degrading humiliating or offensive applies even if the individual(s) acting in this way did not intend to create this effect, and even if the behaviour did not create this effect, also falls under the new law. Sexual harassment is not confined to face-to-face comments and emails, messaging, and uploading inappropriate images could also amount to harassment. Employers may have to completely review their policies and procedures in order to be seen to make every effort to eliminate sexual harassment from the workplace.

Guidance on the Steps to take to Eliminate Sexual Harassment

Effective guidance, by way of policy and procedure, should be set out to address the new law and provide clarity to all involved going forward, to take reasonable steps to prevent sexual harassment. This should include:

• Defining sexual harassment in all its forms, with clear examples;
• Make it clear that harassment is unlawful and will not be tolerated;
• Confirm that disciplinary action will be taken on discovery of sexual harassment, following an investigation;
• Remind that additional factors such as abuse of power over junior staff will be a factor when deciding the disciplinary action to be taken;
• Inform that disciplinary action can include dismissal;
• Harassment by a third party connected to the business will not be tolerated, however, an employee will not be able to bring a claim for third-party harassment alone, however it can result in liability in connection with other types of claim;
• All employees should be report any sexual harassment that they observe;
• Confirm the process on how to report sexual harassment, and who to report this too (with a number of reporting options available);
• List the steps the business will take to prevent sexual harassment;
• List the steps that will be taken to monitor the situation, and the investigation process;
• How employees should deal with third party sexual harassment of the staff when observed.

Employers are advised to assess their workplace and identify areas where there is the potential for sexual harassment, such as where there may be an imbalance of power, or staff working alone at night and when staff, third party workers or customers are likely to drink alcohol. If there is a culture which leans towards vulgarity and crude comments under the guise of humour it should be made clear that this is no longer acceptable. Every effort should be made to address a hostile workplace and make the staff fully aware that changes must be made to address the new law.

Employers are advised to introduce reviews and ongoing monitoring to establish the effectiveness of the measures put in place to control sexual harassment and scrutinise new employees to ensure that they comply. If a complaint is made it should be deal with as quickly as possible, whilst being mindful of confidentiality and how the complainant wishes the matter to be dealt with. Should the behaviour amount to a criminal offence, the complainant must be asked if they wish to report the matter to the police. Steps must be taken immediately to protect a complainant from further sexual harassment.

Giambrone and partners’ employment law lawyers can assist at all stages of implementing the changes required by the new law, and we can advise on immediate action should you think that your workplace is toxic. 

Daniel Theron advises on litigation in family law, employment, cross-border debt recovery and defamation. Daniel has considerable expertise in contentious cross-border family law, including complex financial arrangements and enjoys a high level of success in both debt recovery and employment law. 

Daniel enjoys a reputation of being meticulous in his analysis of the merits of a matter and tenacious in his pursuit of a successful outcome for clients. He frequently impressively navigates challenging situations culminating in an excellent level of achievement, in excess of all expectations.

If you would like to know more about the new law to protect employees please click here.