Worker Protection (Amendment of Equality Act 2010) Act 2023
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Worker Protection (Amendment of Equality Act 2010) Act 2023
On the 26th of October 2024 the new Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force.
The Act introduces a new legal obligation on employers to take reasonable steps to protect their workers from sexual harassment. If an employer breaches the preventative duty, we (the Equality and Human Rights Commission) will have the power to take enforcement action against the employer. Employment tribunals will also have the power to increase compensation for sexual harassment by up to 25%.
We have updated this guidance to include information on the new preventative duty so that employers understand their new obligations under equality law. We have also made minor changes to the rest of the guidance, for example updating it so that it reflects relevant recent case law and the recent Equality Act 2010 (Amendment Regulations) 2023.
We are now consulting to make sure that this new section of the guidance is clear and helpful. Our current guidance can be found here: Sexual harassment and harassment at work technical guidance.
The new section will be in the 'obligations and liabilities under the Act' chapter. In the updated guidance, this will be Chapter 3.
When the guidance is updated, some of the paragraph numbers will change. In the text below:
New guidance section: the preventative duty
Duty on employers to prevent sexual harassment of workers
3.16. Employers have a positive legal duty to prevent sexual harassment of their workers. They must take reasonable steps to prevent sexual harassment of workers in the course of their employment (the ‘preventative duty’) (s.40A(1)).
3.17. Sexual harassment means harassment of the kind described in section 26(2) of the Act (unwanted conduct of a sexual nature) (s.40A(2)).
3.18. Taking reasonable steps to prevent sexual harassment is a key element of the preventative duty.
3.19. The preventative duty is an anticipatory duty. Employers should not wait until an incident of sexual harassment has taken place before they take any action. The duty requires that employers should anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place. If sexual harassment has taken place, the preventative duty means an employer should take action to stop sexual harassment from happening again. However, if an employer fails to take reasonable steps to comply with the preventative duty, there are consequences.
3.20. Firstly we (the Equality and Human Rights Commission) have the power to take enforcement action against the employer (s.40A(3)).
3.21. Secondly, if an individual succeeds in a claim for sexual harassment and is awarded compensation, an employment tribunal must consider whether the employer has complied with the preventative duty. If it considers the preventative duty has been breached, an employment tribunal can increase compensation by up to 25% (s.124A). However, an individual cannot bring a claim for a breach of the preventative duty alone. For further information about the consequences of failing to comply with the preventative duty read paragraphs 3.37 - 3.43.
3.22. The preventative duty only applies to sexual harassment. It does not cover harassment related to a protected characteristic (including sex), nor does it apply to less favourable treatment for rejecting or submitting to unwanted conduct.
3.23. The preventative duty requires employers to take reasonable steps to prevent sexual harassment by their own workers. It also requires employers to take reasonable steps to prevent sexual harassment of workers by third parties, such as clients and customers, for further detail please read paragraphs 3.35 - 3.36.
Sexual harassment of workers
3.24. Employers must take steps to prevent sexual harassment of workers in the course of their employment. Sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of:
It is explained in further detail in paragraphs 1.19 – 1.22.
3.25. The preventative duty only applies to sexual harassment that takes place in the course of employment. For further information about this, read paragraphs 3.47 – 3.48.
3.26. Sexual harassment of a worker can be committed by:
3.27. The preventative duty includes prevention of sexual harassment by third parties. Therefore, if an employer does not take reasonable steps to prevent sexual harassment of their workers by third parties, the preventative duty will be breached. The consequences of breaching the preventative duty are explained further in paragraphs 3.62 – 3.68 below.
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An employer is updating its anti-harassment policies and planning training for all staff. It is a large distribution centre with most staff working in a warehouse environment. It is not open to the public, but customers can order products and attend the warehouse to pick them up from a customer collection point.
The employer carries out a risk assessment to assess the risk of its workers being exposed to sexual harassment. It considers what steps it can take to minimise those risks and prevent sexual harassment from taking place and consults with employee representatives about the action it proposes to take. The employer implements a variety of measures including:
However, the employer fails to consider the risk its workers could be sexually harassed by customers attending the premises to collect orders, despite an incident of such harassment occurring only six months ago.
The employer has failed to consider if there are any reasonable steps it can take to prevent the sexual harassment of workers by third parties. It has therefore failed to comply with the preventative duty.
We could take enforcement action against the employer if they fail to comply with the preventative duty (read paragraphs 3.37 – 3.39 below for further information).
Reasonable steps
3.28. To comply with the preventative duty, employers must take reasonable steps to prevent sexual harassment of their workers in the course of employment.
3.29. What is reasonable will vary from employer to employer and will depend on factors such as (but not limited to) the employer’s size, the sector it operates in, the working environment and its resources. There are no particular criteria or minimum standards an employer must meet. Different employers may prevent sexual harassment in different ways, but no employer is exempt from the sexual harassment preventative duty.
3.30. Whether or not an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances of each situation.
3.31. An employer should:
3.32. In deciding whether a step is reasonable, the factors set out in paragraphs 3.51 – 3.56 are relevant and should be considered.
3.33. Other factors that may also be relevant are:
3.34. Chapter 4 provides detailed guidance on practical steps employers can take to comply with the preventative duty.
3.35. In addition to the prevention of worker on worker sexual harassment, the preventative duty includes a duty to prevent sexual harassment by third parties. There are many different types of third parties that could sexually harass a worker (such as customers, clients, service users, patients, friends and family of colleagues, delegates at a conference and members of the public).
3.36. Employers should consider the risk of workers coming into contact with third parties in different situations, the risk of sexual harassment occurring in those situations, and take reasonable steps to prevent such harassment.
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Our enforcement
3.37. If an employer does not comply with the preventative duty, we have the power to take enforcement action against the employer. We have enforcement powers under the Equality Act 2006 which include powers to:
3.38. We can use one of our enforcement powers to take action if we suspect the preventative duty has not been complied with. The preventative duty does not depend upon an incident of sexual harassment taking place to be enforceable by us.
3.39. Read more about our enforcement powers here.
Increase in compensation for sexual harassment
3.40. If an employment tribunal finds that a worker has been sexually harassed and has ordered the employer to pay compensation to the worker, it must consider if and to what extent the employer has complied with the preventative duty.
3.41. If the employment tribunal is satisfied that the preventative duty has been breached, it may order the employer to pay additional compensation to the worker (‘compensation uplift’).
3.42. The amount of the compensation uplift must reflect the extent to which the employment tribunal considers the employer has not complied with the preventative duty. It must be no more than 25% of the amount of compensation awarded to the worker for the sexual harassment.
3.43. Compensation for sexual harassment can include compensation for both past and future loss of earnings, injury to feelings and personal injury. For further information about compensation for discrimination claims read paragraphs 15.37 - 15.43 of the Employment Statutory Code of Practice.
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