Imminent Changes to Sexual Harassment Laws
Changes in Sexual Harassment Regulations: What You Need To Do To Prepare
Sexual harassment in the workplace remains a prevalent problem, with the Me Too movement growing in size worldwide. Although employers have legal obligations in relation to sexual harassment in the workplace, the Trade Union Congress found that almost three in five women (58%) have experienced some form of sexual harassment at work.
To address the unacceptable prevalence of sexual harassment in the workplace the law in the UK is changing to create a more proactive approach to its prevention.
The Equality Act 2010 specifically outlaws sexual harassment as a form of unlawful discrimination. Employers are responsible for the actions of their staff and can be held liable for sexual harassment that takes place in the work environment, as well as outside the work environment, such as at social gatherings or on social media.
However, The Worker Protection Bill (Amendment of Equality Act 2010), which gained Royal Assent in 2023, and is due to come into force in October 2024, introduces a new duty on UK employers to take “reasonable steps” to prevent sexual harassment in the workplace.
This change is motivated by the need to shift from reactive to proactive measures in addressing sexual harassment, to create a working culture where sexual harassment is not tolerated, and to provide better protection for employees who are victims of sexual harassment.
What will change?
The new law has emphasised that employers must take “reasonable steps” to prevent sexual harassment in the workplace. The definition of sexual harassment remains the same as noted in the Equality Act: unwanted conduct of a “sexual nature”. Despite being introduced to mainly safeguard women, this does apply to all genders.
Where the current law only advises employers to take steps to prevent sexual harassment, the new law states that employers have a duty to do this. Where an employer fails to put measures in place, employment tribunals can give a 25% uplift in compensation to employees.
It is vital that employers prepare for these changes now.
What should you do to prepare for the new laws?
There are steps that you should be taking now to make sure that you are ready for when the changes come into effect in October 2024. This will also go some way in showing that you are making efforts towards Diversity, Equity and Inclusion in the workplace.
Some steps that you could take include:
- Ensuring that there are reporting registers for sexual harassment, and these are updated regularly.
- Ensuring that all employees are aware of your anti-harassment policies and know how to speak up if these are not followed by others. Ensure these policies are updated and focus on equality and diversity.
- Carrying out thorough training for staff on harassment and ensuring that those who witness harassment know how to help in these situations and support those affected. This training needs to be more than just a ‘tick-box’ exercise, as this is unlikely to be seen as a reasonable step at tribunal.
- Ensuring risk assessments are carried out to identify and mitigate risk factors.
- Ensuring that there is an effective system in place where employees can report sexual harassment, and that all complaints are investigated appropriately, even if they didn’t happen recently.
- Taking into account third parties, even though it isn’t explicitly mentioned in the legislation. You could put signs up around the building reminding customers or clients of your harassment policy, and how it won’t be tolerated.
Following these measures will help you adhere to the reasonable steps required to prove that you are preventing sexual harassment in the workplace and safeguarding your employees.
By taking these steps, employers can proactively prepare for the changes and ensure they are ready to comply with the new legal obligations regarding sexual harassment in the workplace.
As specialist Employment Law Solicitors, the team at Analysis Legal will be able to provide accurate and up to date advice, including the latest guidance from the Equality and Human Rights Commission.
Talk to us today about how you can prepare for the changes.
Will some laws remain the same?
The new law applies entirely to sexual harassment. It doesn’t apply to other forms of harassment, including based on race, age or sexual orientation. Harassment which is sex-related but not specifically conduct of a sexual nature will not be included.
When the law was initially drafted, there was a clause to protect employees against sexual harassment from third parties, including customers and clients. However, this was debated in the House of Lords, and there were fears that it would be risking one of the pillars of Britain: free speech. There were also risks that it would place too much of a regulatory burden on employers and so this part was dropped from the bill.
Initially, the drafted bill stated that employers must take all reasonable steps to prevent sexual harassment for employees. Following debate, the word “all” was removed and instead, employers will only have to take reasonable steps. This was because there were concerns that this would lead to an unlimited number of factors that employers would need to consider, which creates a potentially unmanageable burden for them.
What are “reasonable steps”?
The legislation does not define what “reasonable steps” are. In the Equality Act, similar wording is used to describe the employer’s defence as taking “all reasonable steps”. Whilst the word all has been removed, it is thought that employment tribunals will interpret this in a similar way to the current law.
How will these changes be enforced?
Employees can claim against employers if they fail to comply with these new regulations, but it must be accompanied by a claim for sexual harassment. Only in these circumstances can they be given a 25% increase in compensation. In other words, an employee cannot solely claim against an employer for not taking steps to prevent sexual harassment without the event itself occurring. However, if an employee is successful in their sexual harassment claim, the compensation increase will apply to all harassment involved in the overall claim.
Importantly, action could be taken by the Equality and Human Rights Commission (EHRC) to investigate your internal procedures. Whilst this is very rare now, it could potentially change in the future. The EHRC have also implied that it will update its sexual harassment at work guidance to represent the law changes.
What about protecting sexual harassment of staff by a third party?
The new law has removed the legislation protecting employees from sexual harassment from third parties. However, you should still take steps to protect employees from this type of abuse. Current legislation does state that employers could be responsible for harassment or discrimination if it simply ignored employees’ complaints about harassment from third parties and doesn’t take action to mitigate this. Not only this, but it can be hugely damaging for your reputation if you are seen to not prioritise employee protection.
What happens if Labour gets in after the General Election?
The law seems likely to change if Labour come into power. Labour MPs did support the amendments made to the law, but Baroness Thornton has not promised that Labour won’t make further changes. Similarly, Angela Rayner, who is serving as Deputy Leader of the Labour Party, has said that she would ensure that employers are liable for third party harassment and that Labour would ensure that “all” reasonable steps to prevent it would be required.
How Analysis Legal can help
As an employer, it is important to act now to ensure that you will comply with the sexual harassment law changes. At Analysis Legal, we specialise in employment law, and frequently give advice to employers on sexual harassment in the workplace. With the law changing, you need to update your policies and show that you are taking reasonable steps to mitigate harassment in your company.
We regularly support clients throughout Stockport, Manchester and the North West, as well as other major cities including Sheffield, Liverpool and Leeds. We can also help you around the whole of England and Wales.
If you have any queries around sexual harassment policies, get in touch today. We would be more than happy to help.
Once again Analysis Legal LLP is a leading firm in the Legal 500 directory, which states the firm ‘contains a deep bench of committed and commercially savvy lawyers’.