Talking Employment Law: What does the new Worker Protection Act 2023 mean for employers?

From October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 will strengthen existing protection for workers against sexual harassment. This new law will place a new duty on employers to take ‘reasonable steps’ to prevent sexual harassment. Tribunals will have the power to increase compensation by up to 25% if they find an employer has breached this duty.

In the next instalment of our ‘Talking Employment Law Podcast’ series, Lucy Densham Brown and Shauna Jones, members of the employment team at Clarkslegal, will review the new law and provide some guidance on how employers should review their policies in preparation for October. This includes:  

• Understanding sexual harassment
• Current employer obligations
• Explaining the new law and its differences
• Employer liability and employee remedies following harassment
• Preventing third parties not under the same control as employees from engaging in harassment
• Anticipated steps that employers might need to take
• The consequences of failing to fulfil this duty

 If you are an employer and have any queries or concerns about the implications of the new Workers Protection Act 2023, please contact our employment team, who would be happy to assist you.

Transcript

Shauna Jones 00:06

Hello and welcome to the Talking Employment Law Podcast. My name is Shauna Jones and I am a trainee Solicitor in the Employment team. I am joined with my colleague Lucy Densham Brown who is a solicitor in our Employment team.

Lucy Densham Brown 00:18

Hi everyone. Today we will be discussing the upcoming changes introduced by the Worker Protection (Amendment of Equality Act 2010) Act 2023 which is coming into force in October 2024. Under this Act, employers will have a duty to take reasonable steps to prevent sexual harassment of their employees. We will review what the current position is and provide some guidance on how you should review your policies in preparation for October.

Shauna Jones 00:49

So first things first – what is sexual harassment?

Lucy Densham Brown 00:53

So, sexual harassment is unwanted conduct of a sexual nature that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. It is irrelevant whether the conduct intended to have this effect as long as the reaction is reasonable.

Shauna Jones 01:20

That’s right - as long as there has been some unwanted conduct of a sexual nature which has had the effect of causing the hostile environment, and its reasonable for the recipient of the conduct to perceive it as such, then a claim has been set out for harassment. The list of behaviours which can be deemed as harassment is a long one. These can include sending inappropriate images, making suggestive comments or even jokes intended to be banter. There is no requirement for the recipient to have made it clear that the conduct was unwelcome and it could even be a one off incident.

Lucy Densham Brown 01:55

So it’s important to be aware of what might cause upset to someone, even if you don’t necessarily intend for those actions to have that effect. If harassment does occur, who is liable and what remedies does the employee have?

Shauna Jones 02:11

The current duty provides that the employer cannot subject an employee to harassment. This means an employer may be vicariously liability for the actions of their employees if harassing acts occur during the course of the employment. The employer can provide a defence to demonstrate they’re not liable for the acts of their employee if they took all reasonable steps to prevent that harassment or treatment.

Lucy Densham Brown 02:36

Thanks Shauna. So a common example of vicarious liability that Shauna just described is where harassment has taken place at the Christmas party hosted by the employer. An employer may be liable if they haven’t taken the reasonable steps to prevent this. To defend such a harassment claim the employer will need to demonstrate that they took all reasonable steps to prevent this prior to the incident, which might include for example: harassment training records for staff involved, circulating their anti-harassment policy prior to the event, and sending a behavior warning to employees prior to the event.

Shauna Jones 03:16

Thanks Lucy. Could they also demonstrate they have taken steps to limit the likelihood of their employees getting too drunk and engaging in this behaviour?

Lucy Densham Brown 3:26

Yes exactly. The employer should be able to demonstrate that they have taken all reasonable steps, not just some reasonable steps. If there is a step that the employer should reasonably taken that it did not take, this defence will fail, even if that step would not have prevented the harassment. For this reason, unless an employee has gone completely rogue, in practice employers tend to not invoke this defence as it’s unlikely that the tribunal will let them off the hook for their employee’s actions. An employee has a claim for compensation if it’s held they have been harassed so the tribunal does not want to leave the employee without this cause of action.

Shauna Jones 04:07

Yes, this vicarious liability is currently limited to their employees acting in the course of employment but it’s a high hurdle to overcome. But this new duty coming into force in October provides that employer must take reasonable steps to prevent sexual harassment of its employees during the course of their employment. How is this different from the current duty?

Lucy Densham Brown 04:30

Well, it’s different because it applies to any sexual harassment which an employee may experience. This means an employer may be liable for actions done by third parties. For example, a retail employer now from October, owes a duty to protect their shopworkers from customers who may sexually harass them as long as it took place in the course of their employment.  It’s a wider duty in the sense that it places a positive obligation on the employer to prevent sexual harassment from anyone. Whilst they can tell their employees that harassment won’t be tolerated, how can they prevent third parties who are not under the same control as employees from doing so?

Shauna Jones 05:13

Exactly – so we have witnessed slight variations in the duty employers owe. Currently, they owe all reasonable steps to prevent harassment to their employees but the new duty only requires them to take reasonable steps to prevent harassment from third parties.

Lucy Densham Brown 05:30

So it’s a minor difference but the conscious decision for the current legislation to leave out the “all” makes a lot of difference?

Shauna Jones 05:40

Yes it would appear so. We’re currently still awaiting guidance as to what reasonable steps is likely to cover but it seems that employers will not be expected to cover every single preventative measure. It would be too onerous to hold employer’s responsible to take all reasonable steps to prevent harassment for every single person who comes into contact with their employees when they have limited means to control them.

Lucy Densham Brown 06:06

Exactly – this reflects the decision made in Parliament while introducing the bill. There were originally discussions about whether employers should have a duty to protect employees against any form of harassment. This would include circumstances where employees are subjected to racist abuse from customers for example. However, this has not been put into the legislation and the duty only relates to sexual harassment so in some ways the duty has been watered down before being put in to force. So what kind of steps might we expect employers to take?

Shauna Jones 06:44

Hopefully, they will already have preventive measures in place to protect their employees. It’s likely some of the steps that an employer will be expected to take will be similar so these can simply be extended. For example, an employer should have a policy in place to explain how to report and investigate harassment. This can be updated to reflect that the policy will also apply to investigating harassment as a result of a third party. 

Lucy Densham Brown 07:12

That’s right, it seems reasonable that one of the expected steps which employers should be able to show is that they can deal with protecting their employees in the case of harassment. This can be training and focusing on creating a zero-tolerance workplace. But how can employers demonstrate they are preventing harassment rather than just investigating and stopping it reoccurring?

Shauna Jones 07:38

It could be a case of putting up visible signs in places open to public. We’ve seen these “be kind to our staff” signs in places like rail stations. This could be one step that an employer could take.

Lucy Densham Brown 07:50

Yes – To prepare for this new law, current policies should be reviewed to line up with the fact that preventative measures will need to be taken to protect employees from a wider range of individuals. Hopefully the published guidance will provide greater clarity on what employers should be doing.

Shauna Jones 08:10

Yes until the guidance is published knowing exactly how to fulfil this duty is difficult but in the meantime employers can’t go wrong by complying with current guidance and ensuring they are taking all reasonable steps to protect their employees. Particularly as when the law was being discussed in Parliament, it was recognised the high regulatory duty this may put on employers. But what are the consequences of having failed in this duty Lucy?

Lucy Densham Brown 08:37

Well, it’s not a standalone claim. The employee will have to raise the breach of duty as part of another action. For example, if they have another wider claim against their employer for sexual harassment that they have experienced as a result of another employee as discussed before. They can raise this breach in those circumstances and if the tribunal finds that the employee’s behaviour was harassment they may also award a compensation uplift of up to 25% of the amount awarded. Due to the employers breach of duty.

Shauna Jones 09:12

So it must be tacked on to another claim. This means the duty is still slightly limited in when the employee can make a claim. If the employer has done everything right, but still has still not prevented their employee from being harassed by a third party then the employee’s route for compensation and claim is limited. The Equality and Human Rights Commission do have powers to conduct an investigation and take action on their own initiative. If they bring the investigation, they can enter into a binding action plan for the employer and help employees with their legal claims. It’s therefore still very important for employers to take this duty seriously.

Lucy Densham Brown 09:51

Ultimately, we’ll be able to update you with further information on how exactly this duty will impact employers once further guidance is published and when the duty comes into force. But the important points to take away is you can now start reviewing your policies now to ensure they are in line with current legislation and that you are taking steps to review your workplace culture to encourage a culture of preventing harassment from anyone towards your employees. 

Shauna Jones 10:18

Yes exactly, we will continue to review for published guidance to ensure we can advise our clients the best steps they can take to fulfil their new duty. If you would like to hear further from us regarding these steps you can sign up for further updates from our employment team or get directly in touch for advice.

Lucy Densham Brown 10:37
 
Thank you for listening to Clarkslegal’s Employment Law series. Please check back for further employment law updates.