New ‘sexual harassment at work’ changes going live on Saturday

A new chapter is emerging for employers. On 26 October 2024, The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force.

The Act will establish a new duty for employers to take a more proactive approach to ensure ‘reasonable steps’ are taken to prevent sexual harassment in the workplace.

The Equality Act defines sexual harassment 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. Examples of what may amount to sexual harassment include making comments of a sexual nature or unwanted sexual advances. So, what can property businesses do to prevent sexual harassment?

Right direction

Such reasonable preventative steps will vary depending on a multitude of factors including the employer’s size, resources, and sector they operate in. While there is no universal approach that suits all, there are several proactive ways that employers can minimise the risks and these are as follows:

• Anti-harassment policies

Having well-documented and easily accessible anti-harassment policies helps to facilitate a consistent approach when dealing with harassment complaints. Such policies should explicitly state that sexual harassment, including incidents involving third parties, is unacceptable and that appropriate disciplinary measures will be enforced against any employees who are found to have harassed their co-worker.

• Reporting Systems and Processes

It is important that employers provide clear and accessible channels for employees to voice any harassment concerns. Typically, estate agents have a smaller workforce and so by having anonymised reporting systems, it allows employees to feel comfortable disclosing any experiences. Additionally, it allows the necessary support and resources to be provided to any employees affected.  In particular, encouraging reporting can prevent future occurrences and therefore improve an overall workplace culture in the office.

• Risk Assessments

Employers should aim to pinpoint the specific risks within their organisation and consider how to reduce them. For example, house viewings with third parties (especially late at night) can pose a number of risks. As a result, assessments should be conducted regularly to ensure continuous monitoring and engagement with any relevant issues.

• Training

Employees at all levels of seniority should undergo training on what defines sexual harassment and how to identify it. Managers should be equipped to handle complaints and recognise the signs of potential sexual harassment. It is also important to highlight that refresher training should ideally be provided to all employees every six to twelve months.

Snags

If an employee successfully brings a sexual harassment claim to an employment tribunal and their employer failed to take reasonable steps to prevent the sexual harassment, it could lead to a compensation uplift of up to 25%.

In addition to compensation, there is also the possibility of enforcement action by the Equality and Human Rights Commission (EHRC). Such sanctions include investigating the employer or entering into a formal, legally binding agreement with an employer to prevent future unlawful acts.

Far enough?

Some have argued that the change in law does not go far enough or is simply a reiteration of the law already in place. It is true that the legislation being passed is somewhat watered down from the initial proposals, in as far as ‘all reasonable steps’ has been reduced to ‘reasonable steps’. However, the legislation together with the new EHRC guidance has served to put sexual harassment in the workplace into the spotlight.

The biggest change we consider for businesses will be the increased focus on risk assessments and training. To some, this could be considered to be nothing but a performative measure, however, the hope is that this will mean that businesses can keep on top of any toxic workplace environments and hopefully address and resolve any issues before they become wider workplace problems.

Of particular interest will be the EHRC’s emphasis on what should be taken into consideration when conducting a risk assessment. This will include things like size of workforce at the agency, workplace environment and lone working arrangements.

The legislation will also see the introduction of a positive obligation on organisations to prevent sexual harassment from third parties, which some fear will put an additional onus on businesses like estate agencies where their primary focus is client facing.

But as this will not be a standalone claim, there will also have to be a claim against the employer for a claim to brought.  Therefore, provided estate agencies conduct appropriate risk assessments into potential red flags where agents are working late and alone with third party clients and all complaints are handled seriously and sensitively then this should not be too onerous.

We consider on balance that the changes will likely have a positive impact on the workforce. However, this will initially depend on the businesses themselves and how seriously they take the changes.

Historically, we have seen the Employment Tribunal award large injury to feelings awards and aggravated damages where employers have failed to take reasonable steps to protect their workers from sexual harassment, making it clear that the Tribunal does not take lightly to this sort of inaction. It will therefore be interesting to see how the Tribunal enforces this new preventative duty.

Amelia Little is an employment associate, and Olivia Russo is an employment solicitor at law firm JMW Solicitors in London.