Worker Protection (Amendment of Equality Act 2010) Act 2023

The Government has recently passed the Worker Protection (Amendment of Equality Act 2010) Act 2023 and it will come into force on 26 October 2024.  In short, it creates a new, proactive statutory duty on all employers to take reasonable steps to prevent sexual harassment in the workplace.      Any failure to do so will result in an increase of up to 25% in the amount of compensation awarded to an employee who brings a successful claim for sexual harassment under the Equality Act 2010.

It is worthy of note that the legislation has a relatively wide definition of employee to include workers and some self-employed individuals, in the same vein as other protections under the Equality Act 2010.  Furthermore, the obligation extends outside the workplace to work events, drinks, and Christmas parties for example.

In addition, the Equality and Human Rights Commission (EHRC) will have specific powers to enforce this statutory duty and can require employers to prepare an action plan to prevent future harassment (similar to the action plan committed to by McDonald’s earlier this year in response to findings of poor handling of harassment complaints).  The EHRC is currently developing a Code of Practice specifying the steps that employers should take to prevent harassment in their workplace.    Employment Tribunals will have to take this Code of Practice into consideration when determining the question of whether a respondent employer has complied with its statutory duties.

In light of #MeToo and the prolific number of harassment issues being reported in the press, this is a necessary and welcome progression in workplace protection.   However, it is not as far-reaching as was originally hoped by Wera Hobhouse – the Liberal Democrat MP who initially tabled the Bill in 2022.  The new pro-active duty on employers was narrowed from an obligation to take “all reasonable steps” to an obligation to take “reasonable steps”.  On the face of it, this might seem like semantics but in practice, it is likely that the loss of the word “all” will make it much easier for employers to comply with their obligations and contradictorily doesn’t go as far as the general duty on employers to prevent discrimination in the workplace.

Furthermore, and perhaps more crucially, it was originally anticipated that there would be a separate, specific duty on employers to prevent harassment of their staff by third parties(which was removed from the Equality Act 2010 when it was amended in 2013).  This obligation was dropped in the Bill’s progression through Parliament primarily due to the practical difficulties employers would face particularly in the hospitality industry in preventing third-party harassment.      This amendment, when taken together with the lack of progress with the Bullying and Harassment Bill, does call into question how progressive the current Government’s thinking really is in terms of worker protection.      There is a very real gap in protection against workplace bullying in that, at present, an employee has no standalone statutory claim where they are bullied unless that bullying is linked to a particular characteristic protected under the Equality Act 2010.   The Bullying and Harassment Bill was intended to create a freestanding right to bring a claim for bullying on any grounds but it is likely we will have to wait until after the next general election for this issue to be progressed if at all.    In fact, if we have a Labour Government come the next general election, there is likely to be a plethora of new laws in light of Keir Starmer’s New Deal for Working People and the landscape will change significantly.

So, what does the new legislation mean for employers, and critically, what steps, if any do they need to take?   Most employers are already aware of the steps they need to be taking to avoid liability for discrimination e.g. clear policies and regular, rigorous, high-quality training which is followed through in practice.  It therefore remains to be seen how much further this new law will go and whether it will require substantially more than currently undertaken by a prudent employer to prevent workplace discrimination.   While the new legislation relates only to sexual harassment and not to any other harassment surrounding other protected characteristics such as age and disability, our sense is that employers would be wise to apply the same approach to harassment relating to any protected characteristic.  

We would recommend a thorough review of policies and procedures, consistent, high-quality DEI training, and consideration of contracts with third parties and how far these should go in incorporating DEI policies into supplier and client obligations to staff.     It would also be sensible to have a clear reporting process and procedure in place so that employees feel empowered and able to raise their concerns.      In recent research undertaken by the TUC, it was uncovered that many employees do not report what has happened because they are concerned that they will not be believed or that there may be some adverse repercussions to raising complaints.   A clear process on which all employees are trained and made aware would be hugely beneficial, not only in giving employees the confidence to report harassment but would also be one piece of compelling evidence that the employer has taken reasonable steps to protect its employees from harassment.

At Osborne & Wise we regularly provide bespoke training programmes for our corporate clients across the whole range of employment law including diversity, equality and inclusion so please feel free to contact us at info@osbornewise.com if this might be of interest.