Christina Leung from law firm Pennington Manches Cooper explains new duties that will be in force in the UK from October 2024.
The Worker Protection (Amendment of Equality Act 2010) Act 2023, which will come into force on 26 October 2024, amends the Equality Act 2010 in two respects. It will:
- introduce a new duty on employers to take reasonable steps to prevent sexual harassment of their employees. This marks a key change in focus in the legislation from redress to prevention, imposing a new obligation on employers to be proactive in tackling sexual harassment; and
- give employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached this new duty – this uplift could be significant, especially as compensation awarded in the most serious cases of sexual harassment can exceed £50,000.
It is important to note that this new duty does not give rise to a freestanding claim and must be attached to a claim for sexual harassment. The duty can also be enforced by the Equality and Human Rights Commission (EHRC), using its existing powers of enforcement, including investigations.
While the new duty will be significant for employers, the new legislation does not go as far as originally proposed, with the House of Lords making two amendments to the draft legislation, namely:
- removing the proposed clause which would have restored the third-party harassment provisions in the Equality Act, which were repealed in 2013. The removal of this clause means that the new act does not change the existing law in relation to third-party harassment; and
- requiring employers to take ‘reasonable steps’, rather than ‘all reasonable steps’ (our emphasis), to protect employees from sexual harassment in the course of employment.
It is understood that this amendment is not intended to affect the existing statutory defence to a claim of sexual harassment under section 109(4) of the Equality Act, where employers have taken 'all reasonable steps' to prevent it. This is a high hurdle for employers to surmount, as it is relatively easy for a claimant to suggest other steps that an employer could have taken, thereby demonstrating that they did not take ‘all’ reasonable steps.
Rather, the amendment will create a separate ‘reasonable steps’ test for the new duty on employers to prevent sexual harassment. This is a lesser test, which should be easier for employers to satisfy, although it remains to be seen how this new duty will be approached by tribunals, particularly given that they will already have made a finding or findings of sexual harassment before considering this duty ...
Reproduced by kind permission of Penningtons Manches Cooper.
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