09/11/2023

Worker Protection (Amendment of Equality Act) Act which originated as a Private Members Bill, and received the backing of government, finally passed into law on 26 October 2023, but will not come into force for another year i.e. 26 October 2024.

This Act will only apply in Great Britain and not extend to Northern Ireland, where the provisions on sexual harassment differ. (see below)

The Act places a positive duty on employers to take reasonable steps to prevent the sexual harassment of employees.

How does that differ from the current statutory defence?

The statutory defence allows employers to avoid vicariously liability for the actions of their employees. To avail of the statutory defence, employers must show that they have taken all reasonably practicable steps to prevent the act or similar acts occurring.

For example, if Employee X makes a comment / commits an act of a sexual nature against Employee Y and Employee Y brings a tribunal claim, the employer can avoid liability by demonstrating that it has taken all reasonably practicable steps to prevent Employee X doing that act, or similar acts. The ‘all reasonable steps’ defence is a high threshold and therefore not easy for employers to meet.

If Employee X was also named as a Respondent party in Employee Y’s legal claim, Employee X can also be held personally liable.

Under this Worker Protection Act rather than simply avoiding liability (via the statutory defence) this Act places an additional and positive duty on employers to take reasonable steps to prevent sexual harassment of employees in the course of their employment.

The word ‘all’ has been omitted from the Act, so the duty appears to be at a lower threshold to that of taking ‘all reasonably practicable steps’. How this will differ to the statutory duty to take all reasonable steps remains to be seen.

If a person succeeds in a sexual harassment claim, the tribunal must go on to consider if this duty has been satisfied.

Should the tribunal find that the duty has not been satisfied, it can apply an uplift to compensation awarded by up to 25%, to reflect the extent to which the employer has failed to comply with its duty.

It is important to note that the Act only applies to sexual harassment and not to other protected equality grounds (e.g. race, age, religious belief etc).

The Act originally had provisions to re-introduce third party harassment which were abandoned on its passage through parliament.

Northern Ireland position

As mentioned above, the Worker Protection (Amendment of Equality Act) Act will not apply in Northern Ireland.

There is also a distinction between Northern Ireland and Great Britain regarding liability for acts of harassment by third parties. In Northern Ireland the Sex Discrimination Order 1976 (amendment) Regulations (Northern Ireland) 2008 (which came into force 6 April 2008) provides that employers must take reasonably practicable steps to protect their employees from harassment by third parties (such as clients or customers), where such harassment is known to have occurred on at least two other occasions. In other words, unlike Great Britain we have retained employer liability for third party harassment.