The Worker Protection (Amendment of the Equality Act 2010) Act 2023

The Worker Protection (Amendment of the Equality Act 2010) Act 2023, provides for a positive duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. This is due to come into force on 26th October 2024. We therefore recommend the introduction of and completion of a sexual harassment risk assessment.  This will assess the risk of employees being exposed to sexual harassment in the workplace and determine the workplace measures which are reasonable to take to minimise those risks. When conducting a sexual-harassment risk assessment factors to consider include:

• a workplace culture that permits crude, or sexist banter and/or disrespectful behaviour;

• gendered power imbalances (for example where the majority of junior staff are female and senior leaders are male);

• workplaces where alcohol consumption is allowed;

• an expectation for workers to attend social events or conferences offsite or stay overnight (particularly if alcohol is being consumed);

• lone or isolated working conditions, including with third parties;

• night working;

• an insecure/casual working arrangement;

• a failure to respond appropriately to previous reports of sexual harassment;

• the absence of policies or procedures to prevent or respond to sexual harassment; and

• the presence of workers who have more than one protected characteristic (as disabled people, ethnic minorities and people from the LGBT community are more likely to experience sexual harassment)

What is considered reasonable will be different for each organisation and dependent on a number of factors, for example:

• the size and resources available to the employer;

• the nature of the working environment;

• the sector in which the employer operates;

• the risks present in the workplace;

• the nature of any interaction with third parties (type of third party, frequency of contact, environment);

• the likely impact of taking a particular step and whether a different approach could be more effective;

• the time, cost and potential disruption associated with taking a particular step weighed against its potential benefit;

• whether concerns of sexual harassment have been raised with the employer;

• compliance with relevant regulatory standards (such as those set by the Financial Conduct Authority or General Medical Council); and/or

• whether any steps already taken have been effective or ineffective (for example if a further incident of sexual harassment occurs after steps have been taken, this may indicate that additional and/or alternative action should be considered)

If an employer does not take reasonable steps to prevent sexual harassment of their employees, the preventative duty will be breached. Employment tribunals cannot consider standalone breaches of the preventative duty. However, if an individual succeeds in a sexual harassment claim and the tribunal finds that that the employer breached the preventative duty, compensation can be increased by up to 25%. 

As well completing a risk assessment employers may need to considering training and/or retraining their line management teams.

We are currently drafting an anti-harassment and anti-bullying policy which deals explicitly with sexual harassment. If you need assistance with a policy, form and/or are considering training please do not hesitate to contact us.