Weakened sexual harassment laws send mixed signals to employers

The watered down Worker Protection (Amendment of Equality Act 2010) Act 2023 will do little to change sexist cultures

The new act which received Royal Assent on 26 November 2023 and will come into force next year is a far cry from the initial proposals once championed by then Women and Equalities minister Liz Truss.

Gone is the duty to protect employees from sexual harassment by third parties like clients or suppliers. Gone too are harassment protections related to other protected characteristics. Even harassment related to sex (like sexism or misogyny) is not included in the new law, only harassment that is specifically of a sexual nature.

A backlash by Conservative peers over requiring businesses to take “all reasonable steps” to prevent harassment was removed. Only “reasonable steps” are mandated by the new legislation.

There’s no corporate criminal offence or specific penalties for companies who do not comply either. The EHRC can decide to take action against an employer, but the main enforcement action is a 25% uplift in a sexual harassment award from an employment tribunal. But only after a successful claim of sexual harassment.

The watered down legislation comes as the Fawcett Society says sexual harassment was “thriving in British businesses.” Allegations of systematic sexual harassment against McDonald’s employees have hit the headlines recently, with hundreds of staff detailing a litany of sexist and racist abuse against workers as young as 17.

But with the vastly reduced protections of the Worker Protection Act, and the high bar of bringing an employment tribunal often out of reach of the lowest paid workers, cultures of harassment will continue to thrive without concerted action by employers.

In environments where harassment is tolerated and complaints ignored, abuse will thrive. If people don’t think their experiences will be taken seriously, they won’t report harassment. This perpetuates a culture of workplace abuse and entrenches harassers in positions of power. Abusers are bullies who will aggressively target those who speak out against them. Robust policies and reporting procedures that protect people who have been harassed, not blame them, are crucial to tackling harassment.

Good sexual harassment training should also tackle the broader issue of employee harassment, bullying and other abusive behaviour, and seek to counter the immense isolation many people who have been treated badly often feel. In short, the training cannot exist in a vacuum. It must understand that harassment has occurred in a workplace, and is probably still occuring. It must also be able to deal with the fact that the training will be done by both people who have been harassed, and by those doing the harassing.

Despite the lack of imagination and broken promises in addressing sexual harassment at work, employers will still have to take some steps to comply with the lew law. At a minimum, “reasonable steps” will include:

Reviewing, updating, and communicating anti-harassment policies and sexual harassment policies
Conducting updated and tailored sexual harassment prevention training
Ensuring a clear reporting path for any complaints and that employees know how to speak up
Promptly respond to and address any concerns that are raised, similar to whistleblowing protections
Carrying out new risk assessments and implementing risk mitigation measures

Employers should also be aware that despite the new protections not coming into force until late 2024, the government which passed it may not be around to implement it. A general election is widely expected sometime in 2024, and the Labour Party, including deputy Leader Angela Raynor, have committed to reintroducing a specific liability for third party harassment, as well as making it a duty for employer to take “all” reasonable steps to prevent sexual harassment. We may even see mandated training or even a corporate criminal offence, similar to other failure to prevent laws once passed by Labour.

Although the Worker Protection (Amendment of Equality Act 2010) Act 2023 will not fundamentally alter the culture of harassment in UK workplaces, employers should take this is a sign that more action on harassment is broadly expected.

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