The new duty to prevent sexual harassment comes into force on 26 October 2024.
The legislation, which is a new section of the Equality Act inserted by the Worker Protection (Amendment of Equality Act 2010) Act 2023, sets out what the new duty is:
“An employer (A) must take reasonable steps to prevent sexual harassment of employees in the course of their employment.”
As you would expect, there are potentially negative consequences for employers who fail to comply with this new duty. Arguably the most significant and likely consequence of the new duty for most employers relates to the compensation that an employer could be ordered to pay were a successful claim of sexual harassment made against them if the employer were held not to have complied with the new duty. In this scenario, employment tribunals will have the power to increase the compensation awarded by up to 25% to reflect the extent of the employer’s failure.
It is worth comparing the wording of the new duty to the wording of what is often called the “statutory defence” contained within the Equality Act. The statutory defence, if successful, is a way an employer can avoid liability for an act of discrimination committed by an employee in the course of their employment. The legislation says this:
“ In proceedings against A’s employer (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A-
(a) From doing that thing, or
(b) From doing anything of that description.”
So, in summary, an employer can currently avoid liability for sexual harassment by one of its employees if it took all reasonable steps to prevent it from happening. You could argue that this is, or should be, sufficient encouragement for employers to take steps to prevent sexual harassment in the workplace.
My take on the new law is that an additional stick is being added to the existing carrot that the legislation currently dangles for employers. As it stands it is a good idea for employers to take steps to prevent sexual harassment in the workplace because it may mean they can avoid liability for the actions of rogue employees. The new law will mean that the cost of not taking reasonable steps to prevent sexual harassment is likely to be even more costly than it is now. 25% of a large award for sexual harassment could be quite a lot indeed!
For more information or advice on this or any other Employment Law & HR issue, please get in touch with James Symons on 0115 9 100 250, or send him an email.
Posted on September 6, 2024
