Guten tag! As they say in Austria.
There isn’t much to report on our upcoming trip, we booked it in a flurry and then seem to have gotten sidetracked with improvements to our house.
These improvements come in the form of a new(ish) kitchen. We’ve had new cupboards built, a new worktop and kitchen tap put in and we’ve got the spray painters booked to give our cupboards a refresh. Can I ask a question? Should we get grey or navy blue cupboard doors? The new top is oak-effect, if that helps. Answers on a postcard please.
The improvements also come in the form of a new chair in the living room. “Is this so your guests are comfier, Philip?” No. It is not. It is because the infamous Benji has taken to stealing my husband’s chair, my husband won’t sit on the sofa with me (I’m choosing not to take that personally) and so we’ve had to get a new chair so that the husband has somewhere to sit. We couldn’t possibly ask the dog to move!
He is clearly incredibly spoilt (the dog, not the husband).
This saw us take a trip to everybody’s favourite Swedish shop. If you have never been to Ikea at 9pm on a Friday night, I wouldn’t recommend it. It’s not a fun place to be and people seem to lose their mind more than they normally do whilst wandering the aisles of flatpack furnishings. Perhaps it’s because everybody in there realised we’re all adults and this is how we are actively choosing to spend our Friday nights. Where did we go so wrong?
One thing not to lose your mind about is the upcoming changes to the Equality Act 2010, which are fast approaching. Unless you’ve been living under a rock/avoiding Precept’s regular updates, you will no doubt be well aware of these.
The Worker Protection (Amendment to Equality Act 2010) Act 2023 – say that 10 times fast – comes into force on 26 October 2024. I’ll recap what that means and bring you the latest updates as the Equality and Human Rights Commission have finally published their updated guidance on these changes.
The new duty
From 26th October 2024 employers’ duties around preventing sexual harassment that occurs in the course of employment shifts from being reactive to proactive. The new legislation imposes a duty to take reasonable steps to prevent sexual harassment of workers in the course of their employment.
Why are we getting this new duty?
Part of the reasoning behind the change is because we seen an increase in sexual harassment in recent years, especially following the pandemic. For example, in a 2021 survey by the Fawcett Society at least 40% of women reported having experienced workplace harassment and ¼ of those surveyed said there had been an increase or escalation since the COVID-19 pandemic.
What is sexual harassment?
Remember – and this is your bluffers guide a little bit – that sexual harassment under the Equality Act occurs where there is unwanted conduct of a sexual nature. That can be anything from sexual comments or jokes, spreading rumours about somebody, intrusive questions, propositions, sexual advances and/or unwanted touching. The conduct must also have the purpose or effect of violating the complainant’s dignity or creating a hostile, degrading, intimidating or humiliating environment for them.
What does the new guidance say?
With these new changes upcoming, we employment lawyers and HR practitioners have been eagerly awaiting the finished guidance from the EHRC. As I say, we’ve now got that so let me give you a rundown of what this finalised guidance says.
- The new duty is an anticipatory duty – don’t wait for sexual harassment to happen before acting.
- It applies to all employers – no employer is exempt regardless of size or the sector they operate in.
- The duty to take reasonable steps to prevent sexual harassment doesn’t just cover harassment from colleagues – the duty extends to cover harassment from customers, clients and other third parties. A quick note on this. The Worker Protection Act doesn’t itself re-introduce the concept of third-party harassment. So, workers are not going to be able to bring freestanding claims in the Employment Tribunal for third-party harassment but the EHRC have made clear that they will take enforcement action against employers that overlook the risks associated with third-party harassment. So keep this very much on your radar!
- Employers are required to assess the risks of sexual harassment. The finalised guidance from the EHRC makes clear that “an employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment.” Examples of the types of risk to factor into these assessments quoted in the guidance include work-related travel, remote working, colleagues socialising and the use of zero-hour contracts.
- The duty is to take reasonable steps to prevent sexual harassment – what does reasonable look like? Well, the guidance explains employers need to consider lots of different things including the time, cost and potential disruption of taking certain steps and weighing that up against the benefit it could achieve.
- The guidance also confirms that employers should act on lessons learned – so, if sexual harassment is found to have occurred after steps have already been taken to try and prevent it, that could indicate that further or different steps need to be considered.
What are the consequences of non-compliance?
Remember, if a worker succeeds in a claim for sexual harassment in the Employment Tribunal and the Tribunal find that the employer has failed to comply with the new preventative duty, they can increase any compensation by up to 25%. And there’s no cap on that – so it could be quite the hefty amount.
The EHRC can also take enforcement action off their own back!
What can we do?
It is vital that you’re up to speed with these upcoming changes and what they mean for your organisation. You have got to make sure you are fully compliant. That’s going to generally improve your place of work, and it will also mitigate the risk against claims in the Tribunal or enforcement action by the EHRC.
Precept have already given you lots of hints and tips on this (you can check out all our blogs and updates here)
But we’re not going to abandon you at this final hurdle, are we?
Remember, remember the 9 October! We’ve got our HR Update session which yes, will look at what has happened in the last 12 months, but will also run through all of the weird and wonderful changes we’ve got coming up (including the Workers Protection Act). So, if you haven’t already signed up? Make sure that you do. Sign up here
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