Changes to sexual harassment legislation and the new positive duty on employers

The recently published annual NHS staff survey shows concerningly the highest reported levels of discrimination experienced by staff since the survey began. 

The survey also asked, for the first time, if staff had experienced any unwanted behaviour of a sexual nature in the workplace. Of those responding 8.7% said they had faced sexual harassment in the past year from patients and their relatives and members of the public. In addition, 3.84% said they had experienced this behaviour from their colleagues.

Against that backdrop NHS employers would be wise to give careful consideration now to the implementation of The Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act), which has received Royal Assent and is expected to come into force on 26 October 2024. 

The Act creates a new positive obligation for employers to take ‘reasonable steps’ to prevent sexual harassment of their employees. 

Changes in the Law

Sexual Harassment is defined in the Equality Act 2010 as “Unwanted conduct of a sexual nature, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”. 

Currently, an employer can be held liable for sexual harassment perpetrated by employees in the course of their employment, unless they can show they had taken ‘all reasonable steps’ to prevent the harassment from occurring. 

Whilst it is currently good practice for employers to take reasonable steps to prevent sexual harassment, there is technically no requirement to do so. The Act will increase the burden on employers by imposing a legal duty to take measures more proactively. 

The change in legislation comes in response to a shift in cultural attitudes, particularly in light of the ‘me too’ movement in recent years and further to the UK ratifying the ILO Convention last year (find out more). 

In March 2018 a report was published by the European Human Rights Commission (EHRC), looking at ending sexual harassment at work, and an inquiry was also conducted by the Women and Equalities Select Committee (WESC) in 2018, looking into sexual harassment in the workplace. Both reports made significant recommendations to increase employer responsibilities and statutory protections. Wera Hobhouse MP described the Act as “the beginning of a much-needed culture change”.

In terms of what will be considered ‘reasonable steps,’ it is likely that a similar test will be used to that set out in the existing employer’s defence. If so, there are no minimum requirements that an employer can rely on, however, employers would generally be expected to have in place an anti-harassment policy which is updated periodically and on which staff receive training, as well as appropriate procedures for reporting harassment.

Significant changes to the draft bill

It is of note that the phrase ‘all reasonable steps’ was originally included in the draft bill, although the word ‘all’ was subsequently removed during debate in the House of Lords. This perhaps suggests that a lower threshold will apply to the new duty, with ‘reasonable steps’ being a more proportionate obligation. 

Furthermore, the original bill sought to reintroduce statutory liability for third-party harassment, but this element was also removed following consideration in the House of Lords. However, the Labour party has indicated that, if elected, this is an area they would seek to revisit. 

Implications and enforcement

Employees will not be able to bring a standalone claim for a breach of the new duty, rather, claims for breach of the duty can only be considered by a Tribunal where an employee’s claim for sexual harassment has been upheld. If a sexual harassment claim succeeds, and the Tribunal finds that the employer has breached the duty, an uplift of up to 25% on compensation can be awarded. 

The EHRC has a range of powers to address breaches of the EqA, including reaching binding agreements with employers instead of taking more formal action such as commencing investigations and issuing unlawful act notices. Health-care employers should also take note of the fact that there is a Memorandum of Understanding between the CQC and the EHRC, which could be relevant in the context of breaching the Act. 

New Guidance on the Act

There is no guidance related specifically to the Act at present, but the current EHRC technical guidance provides a useful starting point for employers.

The EHRC have indicated that this is likely to form the backbone of any new guidance/code of practice and is expected to update its guidance on sexual harassment and harassment at work in due course, in order to reflect the new law. In addition, ACAS have confirmed it will explore options to support employers of all sectors and sizes. 

Guidance and practical steps

In anticipation of the Act and guidance from EHRC and ACAS, there are multiple measures that health-care employers can take now to ensure they are ready for the introduction of the Act, including:

• Ensuring anti-harassment and freedom to speak up policies are up to date and effective - Policies should be easily accessible and highlighted to new starters during induction; 
• Implementing updated (and periodically reviewed) training for managers and staff on the Act addressing matters such as:- identifying harassment; how to intervene; and how to report and address incidents of harassment. The training should be comprehensive and consistent with associated policies;
• Ensuring there is a clear process for reporting incidents of harassment (including anonymously), and that all incidents are fully investigated (sensitively) and resolved and there is a clear paper trail of the steps that have been taken; 
• Appropriate safeguards and protections should be put in place for employees who raise concerns and they should also be sign-posted to available support such as counselling; 
• Staff Engagement creating open channels of communication with staff in 1-2-1 meetings and via staff surveys and exit interviews will enable employers to identify issues pro-actively and take steps to address them;
• Carrying out risk assessments to identify areas of high-risk, and actions that could be taken to mitigate risks;
• Signing the NHS England Sexual Safety Charter launched in September 2023, which demonstrates a commit to taking/enforcing a zero-tolerance approach to any unwanted, inappropriate and/or harmful sexual behaviours in the workplace based on ten core principles and actions that signatories are expected to implement by July 2024

Whilst the Act (alongside the raft of other legislative changes in 2024) presents a challenge for employers, at the same time it presents an opportunity for employers pro-actively to identify issues of harassment and implement bespoke arrangements to address them and the improve the working environment and culture for staff and ultimately service-users. 

Please do not hesitate to contact Hill Dickinson’s Health Employment team if you have any questions or need advice on this area or in relation to the range of employment law changes in 2024.