Law change means new legal duty on sexual harassment for employers

Employers will have to take “reasonable steps” to prevent sexual harassment of their employees in the course of their employment, following Government-approved changes to the Equality Act 2010.

The Worker Protection (Amendment of the Equality Act 2010) Act 2023 received Royal Assent on 26 October 2023 and is expected to come in to force in October 2024.

It creates a new legal duty, enforceable by the Equality and Human Rights Commission, for employers.

Dylan Friend, in the employment law team at Wake Smith Solicitors, looks at the changes.

This article covers:

  • What is sexual harassment?
  • Examples of sexual harassment
  • What the changes mean?
  • What should employers do?
  • Your next move?

What is sexual harassment?

Sexual harassment is defined under the Equality Act 2010 as unwanted conduct/behaviour of a sexual nature.

The unwanted behaviour must also have either violated someone’s dignity, whether it was intended or not, or created an intimidating, hostile, degrading, humiliating, or offensive environment for them, whether it was intended or not.

Examples of sexual harassmentinclude:

  • Flirting, gesturing, or making sexual remarks about someone’s body, clothing, or appearance.
  • Asking questions about someone’s sex life.
  • Telling sexually offensive jokes.
  • Making sexual comments or jokes about someone’s sexual orientation or gender reassignment.
  • Displaying or sharing pornographic or sexual images, or other sexual content.
  • Touching someone against their will, for example hugging them.
  • Sexual assault or rape.

What the changes mean?

The current law allows an employer a defence to any sexual harassment claim if it can show it it took reasonable steps to prevent the harassment.

The bill goes further than the current legal position and provides a new remedy against employers if there is a failure to prevent sexual harassment which will be enforced by the employment tribunals as a secondary action.

The tribunal will consider, when a claim of sexual harassment has been upheld against an employer, whether an employer has done enough to prevent harassment. If it finds that it has not the Tribunal can order an uplift to the compensation awarded of up to 25% in respect of the sexual harassment claim.

This is an important change of emphasis and will be underpinned by a new statutory code on sexual harassment to be published by the Equality and Human Rights Commission.

The code is expected to require training on standards of conduct, policies and practices which address sexual harassment and employers needing to demonstrate a zero-tolerance policy.

What should employers do?

Employers should therefore ensure they have the correct policies and procedures in place prior to any changes taking effect, are training staff, and are ensuring the training is kept up to date.

Your next move?

Our employment team can help with drafting and implementing these as well as providng training. We will provide a further update once the guidance is produced.

If you require any advice on employment law matters, contact our friendly employment team on 0114 266 6660.

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