A Higher Level of Protection for Workers moving Forward.

Since Royal Assent on 26th October 2023, the build up to the implementation of the new Sexual Harassment legislation has seen a wealth of newspaper reports suggesting sexual harassment in the workplace is rife.

The case of Mohammed Al Fayed has seen hundreds of women describing a blatant abuse of position of a man who used his influence to intimidate, and sexually harass during their time as employees.

Last week, two reports from the BBC highlighted similar issues:

Firstly, Strictly Come Dancing (even when their previous scandals have seen chaperones be installed), predatory behaviour on live television that has been described as ‘an inside joke’.

And second, Greg Wallace describing his unwanted behaviour towards women as ‘banter’.

So, what is the outcome of the Worker Protection (Amendment of the Equality Act 2010) Act 2023?

From the 26th October 2024 it will be unlawful for an employer to:

  • Harass a worker, or anyone who has applied for them for employment (s40); and
  • Fail to take reasonable steps to prevent sexual harassment of workers (s40A(1)).

Unwanted Conduct

Unwanted conduct means ‘unwelcome’ or ‘uninvited’. It does not include consensual behaviours between two consenting adults.

‘Unwanted’ should be seen from the subjective viewpoint of the worker, and their consent to behaviour can be withdrawn at any time. So, some consensual flirting is not ‘unwanted’, however, being sexually intimidated at the Office Christmas Party may very well be unwelcome behaviour.

Anticipatory Duty

The duty requires employers to take positive and proactive reasonable steps to prevent sexual harassment of their workers.

The consequences of failing in that duty are twofold:

  1. The Equality and Human Rights Commission have the power to take enforcement action against the employer; and
  2. 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 preventive duty has been breached, the Tribunal can increase the compensation award by up to 25%.

 

What does this mean in reality? - Stacey Mackey v BNP Paribas

In January 2022, the Employment Tribunal awarded Stacey Mackey compensation of £2 million, after she succeeded in her sexual harassment claim against BNP Paribas bank. Mackey had been targeted in the office by male colleagues, who bullied her over a four year period. Has this case come to light after 26th October 2024, then had the Tribunal found that BNP Paribas hadn’t taken positive and proactive reasonable steps to prevent the sexual harassment of Makcey, then she may have received up to £500,000 uplift in compensation as a result.

 

This is the reality of the situation, and the duty on employers in the current climate, is a duty with which employers should comply. Not just to protect potential victims, but to send a message to potential perpetrators that this sexual harassment is not justified or welcome, and there are consequences.

What can Employers Do?

The Equality and Human Rights Commission Guidance sets out a number of practical examples of preventive measures. If an organisation implements these measures, then if in the future, they do face the second question in an Employment Tribunal, then they have at least an argument to persuade the Tribunal that they complied with the duty.

Proactive Protection Starts Here

Employers have a legal and moral duty to safeguard their staff from sexual harassment. Implementing the right preventative measures is key to creating a safe and respectful workplace—and avoiding costly legal consequences.

We offer comprehensive Sexual Harassment Prevention Services, including Face-to-Face or Online Training for directors, managers, and staff, as well as Consultancy, Advisory, and Investigation services tailored to your organisation’s needs.

Our proactive strategies include:

  • Conducting Risk Assessments
  • Developing robust Policies and Procedures
  • Detecting Harassment before it escalates
  • Providing targeted Training
  • Carrying out thorough Investigations

Don’t leave your workplace unprotected. Contact us today to ensure you’re fully compliant and equipped to prevent harassment from happening in the first place.