The Worker Protection (Amendment of Equality Act 2010) Act 2023 (WPA 2023) came into force on 26 October 2024, introducing a new mandatory duty on employers to take reasonable steps to prevent sexual harassment of their employees. The introduction of the new duty shifts the focus from a historically reactive approach when it comes to instances of sexual harassment in the workplace, and instead requires employers to proactively identify risks of sexual harassment and take steps to mitigate these.
The new duty explained
Prior to the introduction of the new duty, employers could be liable for acts of sexual harassment carried out by their employees but would have a defence if they could show that they took all reasonable steps to prevent the harassment. The introduction of the new duty goes further than this and introduces a proactive obligation on employers to take “reasonable steps” to prevent sexual harassment occurring. Compliance with the duty is not static; employers must ensure that they continually review the risks present in their business and consider the steps that they are taking to comply with the duty in light of these.
While the original construction of the duty required employers to take “all reasonable steps” to prevent sexual harassment, this was watered down to the current position during the parliamentary process due to concerns that this construction of the duty would impose too much of a burden on businesses. In particular, there were concerns that this could place an unworkable obligation on employers to prevent the expression of beliefs that might be offensive to some employees. However, the recently published Employment Rights Bill 2024 proposes to amend the Equality Act 2010 to broaden the scope of the duty in this way (see our publication for more information on the Bill). This is something that employers should therefore keep in mind when considering their proposed approach to compliance with the new duty.
While an employee cannot bring a standalone claim for breach of the duty, the tribunal can award an uplift of up to 25% to any compensatory award following a successful harassment claim involving sexual harassment to reflect the extent that the employer has failed to discharge the duty. However, there remains a lack of clarity as to the compensation to which the uplift will be applied (i.e., whether it will only be applied to awards in respect of sexual harassment or if it will apply to all compensation for discrimination). The Equality and Human Rights Commission (EHRC) can also use existing powers to issue an “unlawful act notice” in relation to a breach of the duty. Historically the EHRC has rarely exercised this power, but it is possible that this may change following the introduction of the new duty.
Reasonable steps
While there is no guidance in the legislation on what would constitute “reasonable steps”, the EHRC has published an update to its
technical guidance on sexual harassment at work to reflect the new duty. It is likely that compliance with this guidance will weigh heavily in a tribunal’s assessment of whether an employer has discharged the duty. The guidance is clear that whether an employer has taken reasonable steps is an objective test, but what is reasonable will vary from employer to employer considering factors such as the organisation’s size and resources. The following steps and processes are identified in the guidance as key to ensuring compliance with the duty:
- Risk assessment: the guidance emphasises the need for an employer to carry out a risk assessment based on their specific business. The more foreseeable the risk, the more likely that an employer will be in breach of the duty by failing to take steps to mitigate it. The guidance is clear that, if an employer fails to carry out a risk assessment, it will be difficult for them to show compliance with the duty. It is therefore crucial that employers do not skip this step and move straight to considering generic solutions to mitigate the risk of sexual harassment. Employers should treat this process as an opportunity to reflect on the risk points within their specific business in the broadest terms and to identify those steps that can reasonably be taken to guard against foreseeable risks. The guidance contains a non-exhaustive list of factors that may increase the risk of sexual harassment occurring. This list includes there being a male-dominated workforce, a workplace culture that permits crude / sexist “banter”, gender power imbalances, workplaces that permit consumption of alcohol and lone, isolated or night working.
- Action plan: the guidance states that employers should produce an action plan that sets out what preventative steps they will take to address any risks that have been identified and how the impact of these steps will be monitored. This should be kept under review to ensure continued compliance. The guidance goes as far as suggesting that employers should consider publishing this to employees and the public, for example on their website. The guidance also suggests that a designated lead is appointed to take responsibility for implementation of the action plan and compliance with the duty, in a similar manner to the role of a whistleblowing champion in the context of an employer’s speak up processes.
- Record keeping: while not all possible steps will be considered reasonable, the guidance indicates that it will be important for employers to document what risks were identified, the possible steps to mitigate these risks and the rationale for ultimately deciding not to take certain steps. Documenting this process will allow the employer to subsequently rely on any rationale or explanation in a tribunal process if breach of the duty is alleged. If the duty is extended to require employers to take “all” reasonable steps, the need for employers to consider all possible steps and clearly document the rationale for deciding not to take certain of these will become even more acute.
- Consider risk of third party harassment: while proposals to allow for freestanding claims for harassment by third parties such as customers, contractors, or suppliers were dropped during the Parliamentary process, the guidance expressly states that the duty covers harassment by third parties. In one example given by the EHRC, the hypothetical employer carries out a fulsome risk assessment and introduces a comprehensive suite of steps to mitigate these risks, but fails to comply with the duty by not extending the risk assessment and resulting actions to include the risk of harassment by third parties. The Employment Rights Bill 2024 also proposes to reintroduce the right to bring a claim where an employee is harassed by a third party. When conducting the risk assessment, employers should consider the aggravating factors that may be relevant for each third party and tailor the proposed steps accordingly. Where there are significant numbers of third parties to consider, it may be possible to do this risk assessment by grouping similar parties rather than doing this on an individual basis.
- Consult with stakeholders: the EHRC expects employers to consult with unions (where applicable) and employee representatives when developing sexual harassment policies and considering other steps to respond to identified risks. The guidance also gives the example of consulting with the employer’s woman’s staff network. If no risks are identified through this consultation process, this will provide some support for an argument that the particular risk was not in fact foreseeable and could not reasonably be guaranteed against. Equally, if these bodies are unable to suggest reasonable steps to mitigate the risks identified, this may support an employer who is challenged about not taking certain steps to comply with the duty.
Conclusion
Overall, the new duty looks beyond single isolated acts and imposes a wider, ongoing and proactive obligation that requires employers to tackle cultural standards across their organisation by anticipating risks that might exist and considering how best to respond to these. Rather than seeing compliance with the WPA 2023 as a checkbox exercise, employers will need to embrace this as an opportunity to consider their business in context and cultivate a respectful and inclusive workplace culture.
Please see our guide for more detailed guidance, or to discuss how Linklaters can support your organisation in complying with the duty, please do not hesitate to contact our Employment team.