Workplace Sexual Abuse Laws Are Undergoing a Significant Transformation

The creative industries have long struggled with sexual abuse and harassment, often finding ways to sidestep responsibility and overlook the issue. However, with new legislation set to take effect in Autumn 2024, this is about to change. The industry has undergone significant introspection over the past few years, identifying abuse as a top priority. While some sectors have begun addressing the issue, the upcoming legislation will be welcomed by those who feel current laws are inadequate and leave them powerless to effect change without legal backing. The new law updates the Equality Act 2010, placing a proactive duty on employers to take 'reasonable steps' to prevent employee sexual harassment during employment, extending to self-employed individuals. The definition of 'employee' is broader than in other employment laws, encompassing workers and certain self-employed individuals, and 'in the course of employment' includes activities outside the workplace, such as work-related social events. These points are crucial when considering the practical steps employers must take to comply with this duty. The new provisions utilize the existing Equality Act definition of sexual harassment, which involves unwanted conduct of a sexual nature that violates a person's dignity or creates a hostile environment. The changes will come into force in Autumn 2024, giving employers time to prepare. However, preparation must go beyond simply having a policy and checking boxes; it requires a systemic, cultural shift away from tolerating abusive behaviors. The test of what is 'reasonable' will lie in the courts and tribunal systems, but the legislation emphasizes that this must not be a mere box-ticking exercise. The government has promised a new 'statutory code of practice' and guidance on necessary measures, which will tighten definitions and implications of a duty of care in addressing abuse. Employers and event organizers will need to proactively consider the implications of 'reasonable steps,' likely requiring proper HR advice to ensure appropriate measures are taken. Current guidance from the Equalities and Human Rights Commission recommends developing and communicating an effective anti-harassment policy, assessing and minimizing risk, engaging and training staff, and having effective reporting procedures in place. The new legal duty focuses on taking preventative steps, and having conducted a decent investigation after an incident will not be sufficient to avoid liability. However, taking effective steps can demonstrate that the anti-harassment policy is taken seriously. This shift towards tackling abuse signifies that HR and employment laws will be central to sector growth, with a focus on using HR proactively to prevent organizations from avoiding advice. The legislation will put the onus on employers to shift their cultures, actively demonstrating their efforts to improve company culture and ensure fairness and equality. With talent acquisition trends changing, Millennial and Gen Z employees demand a different psychological contract, prioritizing purpose-driven organizations. Ignoring this legislation will come at a high cost, particularly given the industry's skills shortage. Employers that breach this new duty may face proceedings by the Equality and Human Rights Commission, which will have new powers to enforce standalone breaches. An employer risks an uplift in compensation of up to 25% if an employee brings a successful complaint of sexual harassment and the tribunal is satisfied that the employer breached the new duty. The legislation affects all organizations, regardless of size, and failure to act will leave them vulnerable to claims and talent acquisition issues. Ultimately, this is not just about having a policy but about the culture of the organization, and without a holistic view, businesses may struggle to attract talent and support their people.