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Worker Protection (Amendment Of Equality Act 2010) Act 2023

Contents

Commentary on provisions of Act

Section 1: Employer duty to prevent sexual harassment of employees

  1. This section amends the 2010 Act by inserting new section 40A. It creates a duty on employers to prevent sexual harassment of their employees.
  2. New section 40A(1) describes the new duty: employers must take reasonable steps to prevent sexual harassment of their employees in the course of their employment.
  3. ‘Reasonable steps’ depends on the specific circumstances of the employer, including its size and sector and other relevant facts. In most cases, the employer’s practices and procedures (e.g. grievance and reporting procedures) for preventing and dealing with sexual harassment are likely to be relevant.
  4. New section 40A(2) defines "sexual harassment" in the context of new subsection (1) as meaning harassment of the kind described in section 26(2) (unwanted conduct of a sexual nature).
  5. New section 40A(3) is a "signpost" provision, which explains that a breach of the employer duty in new section 40A(1) is enforceable in two ways. First, a standalone breach (and a breach of section 111 or 112 that relates to a breach of the employer duty) may be enforced by the EHRC as an unlawful act under its existing enforcement powers in Part 1 of the 2006 Act. Second, a breach may also be enforced by an employment tribunal where it has first found a breach of section 40 which involved, to any extent, sexual harassment. Further provisions on the enforcement and remedy of the employer duty are provided in sections 2 and 3.
  6. Incidents of third party harassment in the workplace will continue not be covered by civil remedies. The situation would remain as it has been since the repeal of the third-party harassment protections in 2013.

Section 2: Enforcement of duty to prevent sexual harassment of employees

  1. This section amends section 120(8) of the 2010 Act and inserts new section 120(9).
  2. The amendment to section 120(8) carves out breaches of the employer duty from the employment tribunal’s jurisdiction, meaning that tribunals cannot consider standalone breaches of the employer duty. Only the EHRC can take enforcement action against standalone breaches of the duty if an employer fails to take reasonable steps to prevent third-party sexual harassment of employees.
  3. New subsection (9) clarifies and puts beyond doubt the employment tribunal’s role in considering a breach of the employer duty in relation to a compensation uplift in relevant cases, as described in section 3 (see paragraph 23 below). This means that tribunals cannot consider individual claims for a breach of the employer duty other than in cases where a claim of sexual harassment has been upheld.

Section 3: Sexual harassment of employees: compensation uplift

  1. This section inserts new section 124A into the 2010 Act. It provides for a new remedy in sexual harassment cases in respect of breaches of the employer duty.
  2. New sections 124A(1) to (3) provide that where an employment tribunal finds that there has been a breach of section 40 of the 2010 Act which involved, to any extent, sexual harassment, the tribunal must consider whether and to what extent the employer has also breached the employer duty to take reasonable steps to prevent the sexual harassment of their employees. If the tribunal finds that the employer duty has been breached, then the tribunal may order an uplift to the compensation awarded in respect of the sexual harassment claim.
  3. New section 124A(4) provides that the amount of the compensation uplift must reflect the extent to which, in the tribunal’s opinion, the employer duty has been breached. The specific circumstances of each case will be considered as part of this. New subsection (4) also states that the compensation uplift may be no more than 25% of the amount awarded for the sexual harassment claim. A discretionary uplift to compensation is intended to allow the tribunal to take the specific circumstances of each workplace into account and avoid overall awards which may be disproportionate.

Section 4: Consequential amendments to the Equality Act 2006

  1. Section 4 makes consequential amendments to Part 1 of the 2006 Act.
  2. Section 4(2) inserts new section 21(8) into the 2006 Act. It provides that an appeal may be made in the employment tribunal in respect of an unlawful act notice which relates to a breach of the employer duty (or an alleged breach of section 111 or 112 of the 2010 Act which relates to a breach of the employer duty).
  3. Section 4(3) inserts new paragraph (aa) into section 24A(1) of the 2006 Act. It allows the EHRC to take enforcement action against a breach of the employer duty even if the EHRC does not know or suspect that the breach has affected someone (see section 24A(2) of the 2006 Act). The same applies to a breach of section 111 (instructing, causing or inducing contraventions) or 112 (aiding contraventions) of the 2010 Act that relates to a breach of the employer duty.

Section 5: Extent, commencement and short title

  1. Section 5 provides the name of the Act. It also provides the Act’s commencement date (see paragraph 29 below) and territorial extent (see paragraphs 11 and 12 above).

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