The Worker Protection (Amendment of Equality Act 2010) Act 2023 is set to come into force in October 2024.
Naomi Greenwood, partner at Moore Barlow, explained that currently employers can be held liable for sexual harassment of employees unless they can prove they have taken steps to prevent it.
She said: “The Equality Act 2010 provides that anything done by an employee in the course of their employment is treated as having also been done by the employer. Most sexual harassment claims concern unwanted harassment carried out by employees to their colleagues.
"The employer can be liable for harassment in these circumstances, whether or not the harassment is done with the employer's knowledge or approval. However, there is a defence available to an employer if it can show that it took "all reasonable steps" to prevent the employee from doing the discriminatory act or from doing anything of that description."
Pam Loch, managing director of HR and law firm Loch Associates, clarified that the legislation will require employers to take a more active approach to prevention.
She told HR magazine: “Marking a significant shift from reactive to proactive measures, the act places a new duty upon employers to take ‘reasonable steps’ to prevent sexual harassment in the workplace.
“The new law goes beyond the current advice, which is simply to take steps to prevent sexual harassment and firmly places a proactive duty upon employers to do this.”
This means that employers will have to prove they have taken proactive steps, through training that includes anti-harassment training, to prevent the sexual harassment of employees.
Stephen Cooper, managing director of workplace consultancy Stop Sexual Misconduct, told HR magazine that HR should get ahead of the changes by looking at how effective current policies are.
Read more: Proactively preventing sexual harassment in the workplace
He said: “In light of the impending legislative changes, it is crucial for HR departments to proactively review and update their existing policies and procedures.
“HR professionals must carefully assess the effectiveness of their current protocols in preventing and addressing instances of sexual harassment, identifying any gaps or deficiencies that need to be addressed.
“Moreover, HR departments should take proactive steps to communicate these policy updates to all employees, providing clear guidance on expected behaviour, reporting procedures and available support resources.”
Marian Bloodworth, partner and financial services lead for employment law at Deloitte Legal, told HR magazine that businesses could train employees and complete risk assessments to reduce the likelihood of sexual harassment.
She recommended: “Provide up-to-date training about sexual harassment to staff. Employees should be informed about what sexual harassment in the workplace is and what they can do if they experience it (either personally or if they witness it taking place).
“Take steps to assess and minimise risks in your business. This would entail considering whether there are any factors that might increase the likelihood of sexual harassment such as power or gender imbalances or job insecurity and take relevant steps to minimise it.”
Read more: Sexual assault in the NHS: why HR processes are failing and how to fix them
Bloodworth noted that employers could wait for further clarification on the legislation before making policy changes.
She said: “There is currently no definition of what constitutes ‘reasonable steps’. The Equality and Human Rights Commission will be producing guidance in relation to this through a new statutory code of practice. We expect this new code will be published before the new duty comes into force.
“In the meantime, employers should review existing policies to see whether they comply with existing guidance. If necessary, employers can make changes to such policies once the new guidance is issued.”
