New Sexual Harassment Legislation

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