The Worker Protection (Amendment of Equality Act 2010) Act 2023 (“the Act”) comes into force on 26th October 2024. The Act requires employers to take reasonable steps to prevent workplace sexual harassment. Hospitality and leisure employers must prepare for the preventative duty. They should take steps to reduce sexual harassment in bars, hotels, restaurants, gyms, and other leisure facilities.
The hospitality industry will be heavily impacted by the new duty. This is especially due to factors like regular customer interactions and working at events where alcohol is consumed.
The Act is intended to better prevent sexual harassment in the workplace. This comes following a shift in the public awareness towards such inappropriate behaviour.
The Act will amend the Equality Act 2010 to:
- Require employers to take reasonable steps to prevent employee sexual harassment, and
- Allow employment tribunals to increase sexual harassment compensation by up to 25% for breaches of this duty.
A 2023 Fawcett Society report found that 40% of women experience workplace sexual harassment during their careers. The new Act aims to compel employers to adopt measures and procedures to prevent and address sexual harassment.
The current law
Currently, the law against sexual harassment is covered by section 26 of the Equality Act 2010. This states that it is unlawful for a person to engage in unwanted conduct of a sexual nature that violates the victim’s dignity. This includes creating an intimidating, hostile, degrading, humiliating, or offensive environment for the victim.
It is also unlawful to harass someone because of certain characteristics. This includes age, disability, gender reassignment, race, religion or belief, sex, or sexual orientation.
As such, employers are liable for workplace sexual harassment experienced by their workers or job applicants. They can also be vicariously liable for their employees’ actions. Employers can avoid vicarious liability only by proving they took all reasonable steps to prevent the reported sexual harassment.
This is undoubtedly a high burden of proof to satisfy. Its success depends on the specific circumstances. This includes how the employer handled the complaint, and the policies, procedures, or training in place at the time.
New mandatory preventative duty
Once the new duty takes effect, employers must actively take reasonable steps to prevent sexual harassment. The legislation imposes an ongoing, proactive duty to protect workers from harassment during employment.
As an anticipatory duty, employers must prevent sexual harassment. They cannot just address claims after incidents occur. The preventative duty requires employers to take reasonable steps to prevent sexual harassment by their own workers. It also mandates that they prevent harassment of workers by third parties, such as clients and customers.
The Act will allow the Equality and Human Rights Commission (EHRC) to take enforcement action. This action will be against employers who have not taken reasonable steps to prevent sexual harassment.
Employers are not liable for third-party harassment. However, the EHRC guidance states that the preventative duty extends to preventing harassment by third parties. This includes clients and suppliers. The guidance also provides practical examples of the steps employers may need to take to comply with this duty. Unless amended, this provision will require employers to implement measures to protect employees working outside the office from sexual harassment.
What is considered reasonable will be assessed through an objective test. This evaluation will occur on a case-by-case basis. It will consider the size and nature of the employer’s undertaking. This will be less onerous than the current laws against sexual harassment. Employers will not need to prove that they took “all reasonable steps” to prevent the act complained of.
Employees cannot file standalone legal claims against employers for non-compliance with the new duty. However, those who successfully claim workplace sexual harassment may have their compensation increased by up to 25%. This increase applies if the Employment Tribunal finds that the employer breached its duty to take reasonable steps to prevent harassment.
How should businesses prepare for this new legislation?
Employers should already have measures to combat workplace sexual harassment and discrimination. Starting in October 2024, these measures will be mandatory to avoid liability under the new legislation.
Depending on the employer’s size and nature, potential steps include:
- Conducting an initial risk assessment to evaluate the likelihood and extent of sexual harassment in the workplace. Consideration should be given to the risk of harassment relating to different roles. For example, considerations for front-of-house staff and those in bars or restaurants.
- Creating a zero-tolerance culture on workplace harassment, including sexual harassment. This might include encouraging employees to report inappropriate behaviour.
- Reducing lone working where possible.
- Having an effective anti-harassment policy in place. This should define unacceptable conduct and inform staff of the consequences. It should also make employees aware of the reporting mechanisms. Additionally, consider informing customers and guests that harassment of workers will not be tolerated. Such behaviour could result in their permanent exclusion from the venue.
- Conduct regular mandatory training on sexual harassment, general anti-harassment policies, and procedures.
- Reviewing and updating terms and conditions with suppliers and contractors.
- Implement measures to monitor employees who have raised sexual harassment complaints. This will ensure they receive the appropriate support and are protected from victimisation.
The above is not an exhaustive list. The reasonable steps an employer can implement will vary on a case-by-case basis.
Having effective workplace policies will not only limit an employer’s liability. These policies may also improve stability, employee retention, attractiveness to investors, and overall goodwill.
If you have any questions or would like to discuss how to prepare for the changes, please contact our Employment solicitors on 03456 465 465 or email enquiries@rotherabray.co.uk
Disclaimer: This blog is for information only and does not constitute legal advice. If you need legal advice please contact us on 03456 465 465 or email enquiries@rotherabray.co.uk to get tailored advice specific to your circumstances from our qualified lawyers.
