The Worker Protection (Amendment of Equality Act 2010) Bill received royal assent on 26 October 2023, creating the Worker Protection (Amendment of Equality Act 2010) Act 2023, which will come into force in October 2024. But what will be the implications of this act for employees and employers when the time comes?
The Amendment – What does it do?
The Equality Act 2010 (the “EqA”) already provides protection against sexual harassment in the workplace, under section 26(2). This allows a Tribunal to find an employer liable for sexual harassment based on the conduct of their employees.
The Amendment goes further and imposes a mandatory duty on the Employer to take reasonable steps to prevent their employees from experiencing sexual harassment in the course of their employment. If the Employment Tribunal find that the Employer has failed to take reasonable steps, then an additional compensatory uplift can be applied, of up to 25% of the original compensatory award.
In order for the uplift to be applicable, the Employment Tribunal must first determine that sexual harassment occurred and must have subsequently ordered a compensatory award for the harassment. The uplift will apply in cases where sexual harassment has occurred “to any extent”; meaning, that the sexual harassment need not be the primary cause of action within the claim.
The extent of how far the Employer must go in its preventative steps has not been defined within the Amendment, however, this appears to have been purposefully excluded, as it provides the Employment Tribunal the discretion to assess what would be construed as “reasonable” for each individual Employer, on a case-by-case basis. As an example, the requirements on a small business with limited resources are unlikely to be the same as those on a larger, better resourced business who will be expected to take further preventative action.
By imposing a positive and proactive duty on the Employer, the duty becomes preventative rather than reactionary; with the aim to, if done to a sufficient level, significantly decrease the opportunity of sexual harassment within the workplace and increases the financial consequences if it does.
