October 2024 saw a change to the laws regarding the way in which employers take reasonable steps to prevent sexual harassment and create a safe working environment. The Worker Protection (Amendment of the Equality Act 2010) will now mean that employers have a legal duty to protect employees.
When did this new law come into effect?
The law came into effect on October 26, 2024. It requires employers to proactively identify and mitigate risks of sexual harassment. This includes anticipating scenarios where employees may be subject to sexual harassment and taking action to prevent it.
Who does it apply to?
The law applies to sexual harassment from other people at work and third parties, such as customers and clients.
How is it enforced?
The Equality and Human Rights Commission (EHRC) can enforce the law, and employment tribunals can award up to 25% more compensation if they find that an employer didn't take reasonable steps.
What is sexual harassment in the workplace?
Sexual harassment is any unwanted behaviour of a sexual nature that makes someone feel scared, humiliated, or intimidated. It can include acts such as making sexual or sexually embarrassing jokes, wolf whistling (or similar noises and gestures), sending inappropriate communications, such as texts or emails and with offensive or sexual comments directly or in person.
Harassment can also be physical or verbal unwanted/unwelcome advances to a co-worker, inappropriate or sexual touching of another, and displaying or sharing pornographic/sexual images.
Intended, but not direct comments are considered harassment, such as asking questions about someone’s personal and sex life and making sexual or derogatory comments and jokes about someone’s sexual orientation, gender reassignment or gender choice.
Defamatory and unwanted posts or contact with someone you work with on social media are covered under the Worker Protection Act. This includes spreading sexual rumours about a person, and sending sexually explicit emails or text messages, which can also be counted as sexual harassment.
The EHRC (Equality and Human Rights Commission) says sexual harassment may lead to disciplinary action up to and including dismissal if it is committed against a colleague or other person connected to the employer outside of a work situation, including on social media.
Sexual harassment in the workplace covers employees and workers, contractors and self-employed people, as well as job applicants.
This term could be misconstrued, as ‘the workplace’ in this context isn't just ‘the office’. It can mean an event or situation is in any way connected with work that can fall under the workplace, and then there could be a claim brought for sexual harassment. Think situations such as the staff party, an event held outside the office, a client meeting/event and even simple messaging between colleagues, even after working hours.
Before the legal change, what were the laws regarding sexual harassment in the workplace?
Before the Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force on October 26, 2024, employers could avoid liability for sexual harassment if they could show they took ‘all reasonable steps’ to prevent it.
They could use statutory defence under section 109 of the Equality Act 2010. But the threshold was high for this type of defence, and could be very difficult for employers to show that they took all reasonable steps to prevent any type of harassment.
The new law, introduced in October 2024, requires employers to take proactive steps to prevent sexual harassment. These include:
Conduct a risk assessment
The assessment should consider all factors that could contribute to sexual harassment, such as power imbalances, lack of diversity, and isolated working.
Implement regular training
The organisation could provide regular training sessions that are relevant to the workplace, explaining sexual harassment in the workplace and the consequences of a colleague breaking the rules. Mangers and those in senior positions should keep records of who has received training.
Develop an action plan
Appoint a leader, then plan and set out the steps you'll take to address the risks and how you'll monitor them. Discuss with senior management and consider publishing the action plan with employees and the public.
Investigate complaints promptly
If complaints arise, have a complaints-handling process in place and deal with complaints fairly. Reflect on the outcome of each investigation to identify any wider risks. Encourage staff to report incidents.
Establish clear reporting methods
Employees should feel that they are in a safe environment where they can raise any issues. Ensure there are clear and easy ways for employees to report sexual harassment and provide support for complainants.
Set standards
It is important to set standards and boundaries regrading behaviour at work social events and situations that are associated with work. Make sure that employees know that sexual harassment is not tolerated at the company.
An employer must investigate any report made to them of sexual harassment.
The EHRC has published technical guidance to assist employers with their legal obligations.
For more information and guidance for employers, visit the government website here
Neil Andrews, Partner and Head of Commercial Department and Business Property Law is a Commercial Litigator dealing with a variety of commercial disputes in the County Court, High Court and Employment Tribunals.
He specialises in business and property law and employment work including representing employees and employers at Employment Tribunals, and some of the area's largest employers from 1995 to date.
Neil advises that any organisation set up a consultation with him if unsure about the latest legal update regarding sexual harassment in the workplace.
“Employment law can be complex. It is a constantly evolving area of law that covers many areas of expertise, designed to protect employees and employers, and to create a fair and productive workplace.
However, it can be difficult to navigate, and businesses must remain compliant to avoid costly legal disputes, damage to their reputation, and financial penalties. At Coles Miller our employment lawyers are extremely knowledgeable, skilled at negotiating and regularly achieve successful settlements for our clients.”
For all employment law changes in 2024 that employers need to know, click here