Duty for employers to take reasonable steps to prevent workplace sexual harassment

On 26 October 2023, the Worker Protection (Amendment of Equality Act 2010) Act 2023 received Royal Assent and will become law in October 2024.

The key amendments to the Equality Act will be:

• Employers will have a duty to take reasonable steps to prevent workplace sexual harassment.
• Where there is a finding of sexual harassment against an employer, the compensation can be uplifted by up to 25% if the employer has failed in its duty to take such reasonable steps.

There is no definition of what “reasonable steps” are and it is of note that until the House of Lords introduced a change to the draft bill, the legislation was to require “all reasonable steps” to be taken. This has been diluted to “reasonable steps”.The EHRC will provide updated guidance before the legislation comes into force and we expect this to include reference to steps such as:

• Anti-harassment policies
• Adequate complaints procedures
• Training for staff

Whilst there is no mechanism within the legislation for individuals to bring a stand-alone claim that their employer has failed to comply with its duty, the EHRC can take enforcement action in such cases. The duty will likely become most relevant where there is a finding of sexual harassment and the claimant seeks to have their compensation increased.

This legislation is also notable for what it does not do:

• It applies to sexual harassment only and not harassment on grounds of other protected characteristics. Whilst individuals are still protected from such harassment under the Equality Act, there is no similar positive duty on an employer to take reasonable steps to prevent such harassment.
• It does not, as was originally proposed, reintroduce provisions (repealed in 2013) under which employers would be liable for the harassment of employees by third parties (eg customers) during the course of employment.

Whilst further guidance will follow from the EHRC, employers may wish to consider now their policies, procedures and training programmes in light of this new legislation.

---

If you have any queries you would like to discuss regarding workplace sexual harassment, please contact Rena Magdani or Matt McBride.