Posted: 29/11/2023
The Worker Protection (Amendment of Equality Act 2010) Act 2023, which will come into force on 26 October 2024, amends the Equality Act 2010 in two respects. It will:
It is important to note that this new duty does not give rise to a freestanding claim and must be attached to a claim for sexual harassment.
The duty can also be enforced by the Equality and Human Rights Commission (EHRC), using its existing powers of enforcement, including investigations.
While the new duty will be significant for employers, the new legislation does not go as far as originally proposed, with the House of Lords making two amendments to the draft legislation, namely:
It is understood that this amendment is not intended to affect the existing statutory defence to a claim of sexual harassment under section 109(4) of the Equality Act, where employers have taken 'all reasonable steps' to prevent it. This is a high hurdle for employers to surmount, as it is relatively easy for a claimant to suggest other steps that an employer could have taken, thereby demonstrating that they did not take ‘all’ reasonable steps.
Rather, the amendment will create a separate ‘reasonable steps’ test for the new duty on employers to prevent sexual harassment. This is a lesser test, which should be easier for employers to satisfy, although it remains to be seen how this new duty will be approached by tribunals, particularly given that they will already have made a finding or findings of sexual harassment before considering this duty.
It is understood that the EHRC will update its technical guidance on sexual harassment and harassment at work to reflect the new duty.
Although the impact of the new legislation will be less significant than originally intended, the new duty must not be ignored by employers, who should be reviewing their practices now in order to meet the duty when it comes into force next October. The Labour Party has also indicated that, if it wins the next general election, it will revisit the issue of third-party harassment, and make it a duty to take ‘all reasonable steps’ to prevent sexual harassment in the workplace, although these changes would again need to go through the House of Lords.
What steps can businesses take now in the lead up to next October? Here are a few suggestions: