The Worker Protection (Amendment of Equality Act 2010) Act 2023, set to take effect on 26 October 2024, introduces significant changes to the Equality Act 2010. These modifications focus on two key aspects:

1. New Duty on Employers: The amendment establishes a novel obligation on employers to proactively take reasonable steps to prevent sexual harassment of their employees. This signals a pivotal shift in legislative emphasis from addressing issues reactively to a proactive approach aimed at curbing sexual harassment within the workplace.

2. Enhanced Compensation Powers: The amended Act grants employment tribunals the authority to increase sexual harassment compensation by up to 25% in instances where an employer is found to have violated this new duty. This potential uplift in compensation, particularly in severe cases where awards can surpass £50,000, underscores the gravity of adherence to the preventative measures.

It’s crucial to note that the newly introduced duty does not constitute a standalone claim but must be linked to a claim for sexual harassment. The Equality and Human Rights Commission (EHRC) can enforce this duty, utilizing its existing enforcement powers, including investigations.

While the significance of this new duty is evident, the final legislation has undergone alterations from its initial proposal. The House of Lords introduced two amendments:

1. Third-Party Harassment Provisions: The proposed restoration of third-party harassment provisions in the Equality Act, repealed in 2013, was omitted from the final act. Consequently, the new legislation does not alter the existing law concerning third-party harassment.

2. Scope of Employer Responsibility: Employers are now required to take ‘reasonable steps’ rather than ‘all reasonable steps’ to safeguard employees from sexual harassment during employment. This amendment establishes a distinct ‘reasonable steps’ test for the new duty, potentially making it more manageable for employers to satisfy compared to the previous ‘all reasonable steps’ standard.

It’s crucial to clarify that this adjustment does not impact the statutory defense under section 109(4) of the Equality Act, where employers have taken ‘all reasonable steps’ to prevent harassment. However, it does establish a separate, more lenient test for the new duty on employers to prevent sexual harassment.

The EHRC is expected to update its technical guidance on sexual harassment and harassment at work to align with the new duty.

Implications for Employers:

While the impact of the amended legislation may be less far-reaching than initially envisaged, employers must not underestimate the importance of the new duty. They should commence a thorough review of their practices to ensure compliance when the law takes effect in October. The Labour Party has also signaled potential future changes, subject to election outcomes, emphasising the need for ongoing vigilance.

Preparatory Steps for Businesses:

As the October 2024 deadline approaches, businesses can take proactive measures:

1. Implement Reporting Register: Establish or enhance a reporting register for complaints related to all forms of workplace harassment. This register should be securely maintained with restricted access to relevant personnel.
2. Review and Update Policies: Ensure anti-harassment and dignity at work policies are current and widely circulated among staff. This will reinforce the expected standards of behaviour, empower employees to address misconduct, and raise awareness of available protection.
3. Refresh Anti-Harassment Training: Conduct a comprehensive review and update of anti-harassment training, ensuring its relevance and meaningfulness. Stale or perfunctory training may not only fall short of the ‘all reasonable steps’ defence but could also pose challenges in meeting the new ‘reasonable steps’ duty.

By undertaking these proactive steps, employers can better position themselves to navigate the evolving landscape of workplace obligations surrounding sexual harassment.

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Hannah Powell