Protection from sexual harassment – from colleagues, guests and customers. Are you ready for October?

The new Worker Protection (Amendment of Equality Act 2010) Act 2023 is coming into force on the 26th October 2024. This new legislation places a positive and proactive legal obligation on employers to take reasonable steps to protect workers from sexual harassment (e.g. unwanted conduct of a sexual nature) during their employment. What does this new legislation and duties mean for businesses in hospitality and leisure?

The starting point

To date, where claims of sexual harassment have been made, employers have been able to rely on the statutory defence that they have regularly trained their staff on equality and diversity matters, which would include sexual harassment. In addition, having clear and communicated anti-bullying and harassment policies in place, backed up by a strong disciplinary policy should any allegations of sexual harassment be made, also support employers in being able to meet its statutory defence. However, currently, in cases of unwanted conduct of a sexual nature, whether employers can meet their obligations is a bit hit-and-miss. Also, there are no financial consequences for employers who do not meet these expectations. All in all, there are no guarantees that an employer will have any protections in place for their employees.

The new requirements go further than this, meaning that from October, if employers wish to be able to successfully defend a claim of sexual harassment on the grounds of unwanted conduct. They must show it has taken “reasonable steps” to prevent sexual harassment in the workplace. This is a much wider duty than currently exists and looks at both strategy and culture on a company-wide basis, rather than focusing on particular incidents of harassment as they occur currently.

What are reasonable steps?

What constitutes “reasonable steps” will depend on the size and resources of the particular employer, the sector in which it operates and the relevant working environment. However, there are many ways employers can act positively and proactively to be able to demonstrate it has taken “reasonable steps”.

For example, manager and employee training, clearly communicated and updated relevant policies and disciplinary processes will continue to be important, but in this nuanced area, businesses will need to consider going deeper into behaviours and culture. So, it is likely reasonable steps will also include:

• undertaking risk assessments to ascertain where sexual harassment incidents could occur;
• running, specific and legally focused anti-harassment training;
• looking at areas of the business where there are power imbalances in working relationships;
• auditing past incidents and considering lessons learnt;
• appointing champions and looking at the culture of support; and encouraging victims of sexual harassment not just to speak out, but having safe ways in which colleagues can raise concerns and feel listened to.

What are the consequences?

Whilst, the new duty is not a standalone claim, if an employer loses a claim for sexual harassment (unwanted conduct), the employment tribunal must consider uplifting a claimant’s compensation by up to 25%. With compensation for discrimination/harassment being uncapped, this could be a significant sum of money.

The Equality and Human Rights Commission (EHRC) will also be able to take direct enforcement action against employers who breach the mandatory duty. All this brings with it the risk of long-term business impact and reputation damage, which all employers want to avoid – this is particularly so in the leisure and hospitality sector, where reputations are everything.

Given the context in which this new legislation is being introduced: #MeToo, high profile sexual harassment allegations in major organisations such as the BBC, the CBI, and MacDonalds amongst others, and a new hate crime of misogyny proposed by the Government, businesses who do not take the new rules seriously risk significant compensation payments.

What about third party harassment?

On the issue of third party harassment, inclusion of express protection from sexual harassment by third parties was specifically taken out of the new legislation.  However, the proposed new guidance from the EHRC specially states that the positive duty covers sexual harassment by third parties, which would include clients, customers, contractors etc. Therefore, sectors such as retail, leisure, and hospitality will need to protect staff from sexual harassment from third parties such as guests, customers, visitors, suppliers etc.

The risk of sexual harassment for employees is potentially higher in public facing businesses such as the retail and hospitality sector and

The EHRC guidance cites three steps employers can take to prevent sexual harassment by third parties:

• Adopt a zero-tolerance policy to third-party sexual harassment and communicate that to staff.
• Encourage staff to report instances of third-party harassment.
• Develop a protocol for how any reports of third-party harassment will be dealt with.

Whilst an employee cannot bring a direct claim for sexual harassment by a third party, and has not been able to do so for many years, employees might bring constructive dismissal claims or discrimination claims based on a protected characteristic; therefore, employers have a duty of care to ensure a safe place of work for their staff and have obligations in terms of undertaking risk assessments in respect of the risk of third party harassment. Including the risk of third party harassment within an employer’s strategic planning and risk assessing will also demonstrate its commitment more generally to positively and proactively protecting staff – a key part of being able to meet the new standard.

It will be interesting to see how the courts deal with sexual harassment from third parties, given the EHRC guidance. If employers assume the right extends to third parties, they will be more protected with preventative measures in place.

How ready is your business for the new Worker Protection Act?

We can help you to prepare for this in time for the 26th October.