From 26th October 2024, a new Worker Protection (Amendment of Equality Act 2010) Bill will come into force, that will change the duties of employers and the protection of workers under the Equality Act 2010, specifically in relation to sexual harassment of employees. We set out what every employer should know about these changes right now.
Background
Sponsored by Wera Hobhouse and Baroness Burt of Solihull, this new bill was originally debated to improve the protection offered by the Equality Act 2010.
Specifically, they wanted to make employers liable for harassment of their employees by other third -party members during the course of their employment, where the employer had failed to take all reasonable steps to prevent the third party from doing so, but with exceptions as to when they were liable, such as defamatory conversations or non-sexual conducts. These stipulations were rejected by the House of Lords on the grounds that there were concerns that this anti-harassment legislation could have a worsening effect on free speech.
As a result, the legislature has been changed so that employers are not required to prohibit conversations on controversial topics to abide by this new law, but they still must take action to protect their employees such as effective anti-harassment and zero-tolerance policies. What is important to note is this rejection and removal of employer responsibility and liability for third party members, which has then informed further revisions of the bill detailed below, but it is unclear whether the new Labour government may revise this in the future.
The new legislation
Under the new revised Bill, employers must now take “reasonable steps” to prevent sexual harassment of employees in the course of their employment, where sexual harassment is defined as unwanted conduct in a sexual manner which creates an intimidating, hostile, degrading, humiliating or offensive environment. This is enforceable by an employment tribunal under the Equality Act 2006, who can consider a contravention (an act violating the law) in accordance with a “compensation uplift” for the employee. The occurrence of harassment already creates conditions whereby a tribunal can order the employer to pay compensation, but if they find that the employer has violated the “reasonable steps” part of the new Bill, then the extent that it is violated will inform extra compensation. This is capped at 25% of the original compensation awarded. As such, it is vital that employers abide by the reasonable steps, so that they can protect themselves from this extra compensation uplift.
It is also important to note that the Bill extends what it means for a sexual harassment contravention to have taken place. Sections 111 and 112 of the Equality Act 2010 will now also apply to sexual harassment. This means that attempting or succeeding in instructing, causing or inducing (directly or indirectly) a contravention is an unlawful act. So is knowingly helping someone contravene, with the exception of being knowingly told that this help would not contravene. It is an offence to verbalise this misleading information, and one could be subject up to £5000 in fines for doing so. Special care must be taken to avoid being found liable for these cases, for both employers and employees.
Employers must also be aware that Section 109 of the 2010 Act will remain the same, such that employers will still be responsible for any act of harassment committed by employees, whether they knew or approved of it taking place or not, unless they have taken “all reasonable steps” to prevent it. This reiterates the importance of taking these steps once again.
Implementation
As a result of this Bill, the Government Equalities Office (GEO) have said that updates to the EHRC’s 2020 technical guidance on sexual harassment and harassment in the workplace will take place, in order to reflect these new duties on employers. A 6-week consultation is due to take place in the early summer, with the final revised guidance to be published in September 2024, a month prior to the amended Worker Protection Act coming into force. This advice will be fundamental in informing how employers can amend their workplace practices in accordance with this Act.
What does this mean for you?
For now, employers should be aware of these important upcoming legislative changes, acquire legal advice if necessary, and be prepared to take all “necessary steps.” Once the EHRC publishes their new guidance, employers should be able to find clearer instructions of how and what these steps might be, and thus what they must do to abide by the updated Equality Act of 2010 and protect themselves from liability in cases of sexual harassment in the workplace. Taking these steps will be vital in protecting both employees and employers from sexual harassment in the workplace in the future.
