The Worker Protection (Amendment of Equality Act 2010) Act 2023 is set to come into force in October this year and looks to strengthen the obligation on employers to prevent sexual harassment within the workplace.

It will require employers to take a more proactive approach, with uplifted compensation limits, so it’s important that that organisations plan ahead, both in terms of taking appropriate action and raising employee awareness in the months ahead.

What is changing?

The new act brings two key changes.

The first is that employers must take ‘reasonable steps’ to prevent protect their employees from sexual harassment. This goes beyond the existing employer liability for employee misconduct within the Equality Act 2010, to a proactive duty on employers to prevent sexual harassment in the workplace.

The second change is the power for employment tribunals to increase compensation by up to 25%, where an employer has failed to take those reasonable steps.

These both aim to encourage employers to address sexual harassment more effectively.

Why the change?

According to a recent TUC poll, two in three young women have experienced sexual harassment, bullying or verbal abuse at work, so evidence would show that current legislation is not proving effective, nor is this just limited by age or gender of course. This serves as a clear indication to businesses that HR policy and guidance alone is not going to suffice and a more holistic approach is required to protect employees.
The challenge for businesses however is that there is currently no definition of what constitutes ‘reasonable steps’, although it is expected that the Equality and Human Rights Commission will be producing guidance in relation to this prior to implementation.

Practical steps

This should not be treated as a barrier however and there are a number of practical steps that business can take to prepare.

Policies and procedures: Whilst these won’t work on their own, it’s still important to have a foundation of written policies, procedures and guidance that defines sexual harassment, gives examples and outlines everyone’s responsibilities for preventing and tackling it.

Businesses need to review current documentation for compliance with the new act, ensuring it is visible and accessible for all employees and that teams are briefed and updated.

Reporting lines: It should be safe and straightforward for employees to report incidents of harassment without fear of retaliation, via clear and well publicised reporting mechanisms. It’s also important to have less formal lines of reporting such as regular one to ones with managers and a general open door policy.

Incident reporting and investigating: A reporting register for complaints about all forms of harassment will ensure ongoing monitoring and gives businesses the ability to spot themes or areas of increased risk and take appropriate action, subject to the data protection implications. Complaints need to be investigated swiftly and fairly, sending out a clear message that this type of behaviour is taken seriously and will not be tolerated.

Identify risks: Assuming there are no issues based on a low level or even absence of historical complaints is not a robust approach as a lot of sexual harassment sadly goes unreported. Companies should therefore aim to proactively identify harassment risks based on specific roles and circumstance, considering measures to protect employees in each. Are risks heightened for employees who work outside standard office hours for example, in teams with a lack of gender diversity or for employees who have certain protected characteristics?

Two way communication - Boards also need channels to effectively understand the challenges faced by their employees, in order to proactively tackle any concerns or emerging issues around harassment. Employee surveys, internal working groups or creating employee champions are all methods via which senior leaders can obtain feedback, to add insight and perspective to data and reporting.

Employee training: All employees should be provided with regular training and refreshers, so that they understand clearly what constitutes sexual harassment, the expectations of their employer and the legal implications, as well as their own role in preventing/addressing harassment.

Manager capability: Line managers play a key role in identifying, challenging and dealing with sexual harassment issues, so need supporting with suitable training, education and guidance to tackle this effectively and with confidence.

Organisational culture: Culture comes from the top down, so senior leaders need to be role models and live company values around behaviour, respect and accountability. A further action could also be to appoint a senior director as an equality champion. Without a supportive, respectful culture, arguably, none of the other actions will really be effective as employees need to feel their employer is genuine about its commitment and not just paying lip service to enhanced regulation.

By taking proactive steps now, businesses can not only get ahead of the curve in relation to the new regulation but also build a safer and more inclusive workplace for the future.

For more information on The Progeny Group click here