Category: Employment Law

Since the start of the #metoo movement, awareness of workplace sexual harassment has grown.

As stark revelations of sexual harassment continued to surface, the government made a commitment back in 2021 to strengthen protections for victims of harassment at work. 

The Worker Protection (Amendment of Equality Act 2010) Act 2023 does just this, as it comes into force on 26 October 2024, amending the Equality Act 2010 in two respects.  

Although it has been watered down compared to the original proposals, the new law will still create an important new duty that all employers need to take seriously.

It serves to:

1. Establish a new duty upon you to take ‘reasonable steps’ to prevent sexual harassment of your employees in the course of their employment. This applies to sexual harassment as defined in the Equality Act 2010, which is unwanted conduct of a sexual nature which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. 

The law already provides a defence to a harassment claim if the employer can show they had taken all reasonable steps to prevent it from happening. This meant it was advisable to take such steps, but there was no actual requirement to do so.

Over time the courts have made it evidently clear that such reasonable steps will usually include:

• Having well-drafted equal opportunities and anti-harassment and bullying policies in place
• Ensuring all employees are aware and understand such policies and their implications
• Taking steps to deal efficiently and effectively with complaints, including taking appropriate disciplinary action where necessary, and
• Providing equality and harassment training to employees and supplementary training for those individuals with managerial/supervision responsibilities.

Although the law has predominantly been introduced to protect women, it applies equally to people of all genders.

2. This marks a key change in focus in the legislation from redress to prevention imposing a new obligation upon you to be proactive in tackling sexual harassment; andProvide employment tribunals the authority to uplift sexual harassment compensation by up to 25% where it is found you have breached this new duty.  Please note, this uplift could be substantial, particularly as compensation awarded in serious cases of sexual harassment can exceed £50,000.  In addition to this, complaints of sexual harassment can also lead to costly settlements, high-profile departures of senior management, loss of productivity and an adverse effect on recruitment and employee retention. 

In a nutshell, this new law now goes further by placing a separate legal obligation upon you to take proactive measures to prevent sexual harassment.

To support you in meeting this new obligation KGS can offer crucial training packages to show reasonable steps are being taken.

The case of Allay Ltd v S Gehlen demonstrated that employers would not be able to rely on a reasonable steps defence unless they can show their training is thorough (not brief or superficial), regularly delivered and refreshed if particular issues arise.  This type of training has now become even more significant as these changes have been implemented. The Employment Appeal Tribunal in this case concluded that the original tribunal was “entitled to conclude training was stale and was no longer effective to prevent harassment, and that there were further reasonable steps by way of refresher training that the respondent should have taken”.

To note, the new duty can also be enforced by the Equality and Human Rights Commission (EHRC), using its existing powers of enforcement, including investigations and litigation. The EHRC has indicated that it will update its technical guidance, which it published in January 2020, to reflect the new duty.

What can you do?

This is simple and easy to achieve! The advice we are aiming to provide is that you must ensure mandatory, effective training is in place, and most importantly, that the effectiveness of such training is regularly reviewed and repeated, with improvements made, wherever and whenever necessary.  You need to ensure your training is of a good standard and that employees and managers are aware of what to do when discrimination/harassment arises within your workplace by following the correct steps; only then will you have the chance of using the ‘reasonable steps’ defence if ever called upon.

Next steps:

KGS can support you in this area. We have a choice of online training available to meet your needs and requirements, in particular the course/s of interest may be:

• Bullying & Harassment
• Conflict Resolution
• Equality & Diversity
• Unconscious Bias Training
• Sexual Harassment Training

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

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As you may already be aware from the news articles this week, where home working has been guidance only, from 20^th December 2021, individuals must work from home where reasonably practicable for them to do so. Employers must allow or require their employees to work from home unless there is a clear business need that would make working from home impractical, in line with their duties to take reasonable measures.

When we look at reasonable measures the government have explained that there is an expectation that employers must be flexible and make adjustments wherever that is possible. For example, issuing staff with IT equipment (laptops, monitors, keyboards), issuing staff with mobile phones, facilitating communication across locations this is something a lot of employers will already be prepared for given the unprecedented times over the last, almost two years.

It is important to note that employees must not be required or placed under pressure to return to a workplace setting if there is not a clearly demonstrated business need for them to do so.

Employers who are considering requiring their staff to return to workplace settings should first assess whether alternative arrangements such as working from home could meet the majority of business needs, employees must be allowed to work from home in order to minimise the risk of exposure to or spread of coronavirus. This should be discussed with staff or representatives of staff.

In determining whether to ask staff to return to workplace settings, employers must also consider whether any adverse impacts on an individual’s wellbeing would be particularly adversely affected by this. This includes:

• The risk to individuals who are at increased risk or are clinically extremely vulnerable (who were previously advised to shield and who still need to take high levels of precaution).
• Whether returning to the workplace would cause individuals severe anxiety.

This is particularly the case where work would require them to be in regular or sustained contact with other people or to share a poorly ventilated space for long periods.

Equally, there may be staff who wish to return to or remain in workplace settings. In these circumstances, the wellbeing of staff is a relevant consideration when deciding what measures to prevent the spread of coronavirus are reasonable. For example, would requiring an employee to work from home have an adverse effect on their mental health.

Although an employers’ first priority should be minimising the risk of exposure to coronavirus, this should be balanced against the detrimental effect working from home may be having on an employee’s wellbeing. In these circumstances if employees in this position can return to the workplace setting without a significant increase in the risk of exposure to coronavirus, this can be considered. In view of this, employers should consider the extent to which the employee returning to the workplace would come into close contact with others both within the workplace but also in travelling to and from work.

It is important that risk assessments are kept up to date and that preventative measures are kept in place in line with Government Guidance, for example, 2 metre distancing, hand sanitising, wearing face masks etc.