I have a problem with the Worker Protection (Amendment of Equality Act 2010) Act 2023. It’s a rubbish name for a statute to begin with. But I also think it does something fundamentally undesirable. Bear with me, though, because it will take a while to explain.
This Act was introduced as a private member’s bill, although it was supported by the Government of day and implemented a policy that they had committed to back in 2021 to: “introduce a duty requiring employers to prevent sexual harassment”.
The idea that there should be a duty to prevent harassment – as opposed to a remedy for those who suffer it – seems reasonable enough. Bringing a claim for harassment is a gruelling experience and obviously it would be better if the harassment had simply not happened in the first place. Focussing the duty on sexual harassment – as opposed to any other kind – is a result of this proposal emerging from the 2018 report of the House of Commons Women and Equalities Committee into sexual harassment in the workplace.
And what is that duty? Here is what the Act says (creating a new S.40A of the Equality Act):
An Employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment
This duty comes into force exactly one year after the Act received Royal Assent – which gives employers until 26 October 2024 to put the appropriate measures in place. You know the sort of thing – risk assessments, policies, training. All the usual stuff. This seems straightforward. But there are some things to unpick before we get to the issue that I am concerned about.
The definition of sexual harassment
First of all, what is meant by sexual harassment? Harassment as a whole is defined in S.26(1) of the Equality Act as unwanted conduct ‘related to’ a protected characteristic which has the purpose or effect of violating a person’s dignity or creating an ‘intimidating, hostile, degrading, humiliating or offensive environment’ for them.
This new Act does not create a duty to prevent this sort or harassment. It only applies (new S.140A(2)) to sexual harassment as defined in S.26(2) of the Equality Act. This deals with unwanted conduct ‘of a sexual nature’ which has the purpose or effect that is described in S.26(1).
We have never before had to distinguish between harassment under S.26(1) and S.26(2). And it is quite common to describe as ‘sexual harassment’ behaviour which does not involve conduct of a sexual nature. Suppose we have a misogynistic manager who subjects a female colleague to denigrating comments and jokes. That would be unwanted conduct related to her sex and which violates her dignity. We may call that ‘sexual harassment’, but within the meaning of the statute it is just harassment. To be sexual harassment within S.26(2) it must involve conduct of a sexual nature. It is only that sort of harassment that employers will have a duty to take reasonable steps to prevent.
The role of the Commission
So what happens if an employer acts in breach of this duty to prevent sexual harassment? Individuals will not be able to sue the employer for the breach – that power is reserved exclusively to the Equality and Human Rights Commission. It can investigate employers who appear not to be complying with the duty and ultimately issue unlawful act notices to employers who continue to be in breach. An employer who does not comply with an unlawful act notice can ultimately be fined – though I am not sure that this has ever happened in practice. Even unlawful act notices are rare. One was issued to Pontins back in February this year, but I am not aware of any others since the Commission was founded in 2006.
For most employers, the chances of the Equality Commission knocking on their door and demanding to see what steps they are taking to prevent sexual harassment are as close to zero as makes no difference. On the other hand, if I were the BBC, the Ministry of Defence or the Metropolitan Police I would regard a visit from the Commission as pretty much inevitable.
But I shouldn’t be too cynical about this. I know lots of employers who will genuinely want to do more to prevent sexual harassment and will regard this law as an opportunity to focus on the issue. Employers in Local Government and the NHS will also come under considerable political or union pressure to make sure that they are seen to be complying with the new duty.
Enhanced compensation
Nevertheless, I think the real impact of the Act will be felt in the Employment Tribunals. Just because individuals cannot sue for breach of the duty per se, that does not mean that individual claims will be unaffected. The Act inserts a new section into the Equality Act (S.124A) allowing the Tribunal to increase compensation when someone successfully sues their employer for sexual harassment and it is then found that the employer had breached its preventative duty. In those circumstances, the Tribunal “may” increase the compensation awarded to the employee by as much as 25% in order to reflect the extent of the employer’s failure. Given that there is no cap on compensation awarded for harassment, this could potentially represent a significant sum and be well worth having.
This brings me (at long last) to the problem. It strikes me that almost any successful sexual harassment claim will attract this uplift.
In a harassment claim, the claimant is relying on the fact that the employer is liable for the actions of the individual who has harassed them because the harassment was something done ‘in the course of their employment’ (S.109(1)). But the employer has a defence. It can avoid liability for harassment if it shows that it has taken “all reasonable steps” to prevent the individual from “doing that thing” or “doing acts of that description” (S.109(4)).
Here’s my point. If it is a defence for an employer to show that it has taken all reasonable steps to prevent the harassment then it must follow that in any successful claim for sexual harassment the employer has failed to establish that defence. And if it can’t show that it has taken all reasonable steps to prevent the harassment then it seems to me that it must be in breach of its duty to take reasonable steps to prevent sexual harassment.
Now, technically, this new duty does not require the employer to take ‘all’ reasonable steps, but I don’t think that omission affects the meaning. Asking whether someone has taken reasonable steps to prevent something is equivalent to asking whether they have taken such steps as were reasonable. The employer could hardly expect to discharge the duty to prevent sexual harassment by pointing out that it took some of the reasonable steps open to it but decided not to take the others. The technical guidance being produced by the Equality Commission certainly draws no such distinction.
A hierarchy of harassment?
So the situation we have is that any claim for sexual harassment will – all other things being equal – attract a higher level of compensation than a claim for ‘normal’ harassment where there is unwanted conducted that is related to a protected characteristic. But why should we treat sexual harassment as being more serious than, say, racial harassment? In both cases the harassment might be absolutely devastating to the victim and involve serious criminal conduct. I don’t think it is desirable or in keeping with the spirit of the Equality Act to create a hierarchy of harassment based not on the harm done but the basis of the claim.
It is also inevitable that we will have litigation seeking to draw a distinction between unwanted conduct related to sex and unwanted conduct of a sexual nature – because the way in which the harassment is categorised could significantly affect the compensation awarded. That distinction will not always be easy to draw.
The Government will have the opportunity to address this issue in its proposed reform of the Equality Act. According to ‘Labour’s Plan to Make Work Pay’:
Labour will require employers to create and maintain workplaces and working conditions free from harassment, including by third parties. And Labour would properly tackle sexual harassment at work. One in two of all women have been sexually harassed at work; this must change. Labour will strengthen the legal duty for employers to take all reasonable steps to stop sexual harassment before it starts.
It’s not exactly a clear pledge – but it does give the Government wiggle room to extend the new provisions to all forms of harassment. Any changes would not come into force until after the sexual harassment duty takes effect in October – but the sooner they can be made the better.
A Range of Reasonable Responses 
I agree that the distinction between ‘all reasonable steps’ and ‘reasonable steps’ is going to be very difficult to establish in practice. However I would have though that the fact the word ‘all’ was deliberately removed from the draft Bill must surely mean it’s at least arguable that it was Parliament’s intention to distinguish between the reasonable steps defence for vicarious liability and liability for the uplift. It will be interesting to see how this point is argued before the employment tribunals!
Thats a valid point. I did look at the House of Lords debates on the amendment but they are pretty perfunctory. Baroness Noakes seemed chiefly concern wit the fact that the duty applied to third party harassment – which it clearly does. But she thought that meant that employers would be required to take an almost infinite number of steps to comply with they duty, which I think is clearly wrong.
If this had been a proper Government Bill, someone would have picked up that it was undesirable to have one test of ‘all reasonable steps’ and another of just ‘reasonable steps’ in the same Act – its a recipe for trouble.
On balance though I can’t come up with a sensible way of making this into two different tests. I think it is really just a question of whether the employer has done what it reasonably can – and whether you describe that as having taken reasonable steps or having taken all reasonable steps seems to me to make no difference.
I’m sure someone will argue the point though and if the Government does not amend the test we will have years of uncertainty until the courts finally sort it out.
Agree that the odds of an employer avoiding the additional compensation award without also escaping the claim entirely is essentially zero.
Unfortunately this legislation won’t actually make any real difference in terms of reducing sexual harassment in the workplace. The vast majority of employers already have policies and training making clear that this kind of behaviour is not acceptable, and employees know that. Most cases involve individuals who have misread a situation (and so think the attention is wanted) and/or do it whilst drunk. By comparison the true bad actors will ignore any amount of training or guidance they receive. The employer is held liable for something which it has not done or sanctioned. Further punishing the employer with a compensation uplift isn’t going to change that; instead it move us away from the compensation principle into what is effectively an award of punitive damages.
Might a specific punishment for the individual (for which the employer was not liable to pay) be more effective? Or at least be directed at the correct party?
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