We are dealing here with the Equality Act 2010 and Discrimination at Work.  We are also explaining the link between harassment and bullying which can fall within both civil and employment jurisdiction.  We deal with discrimination in goods and service provision here.

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If an employer unlawfully discriminates against or harasses a job applicant or employee, it will be liable for its actions.   Similarly, other bodies can be primarily liable for discriminating against protected individuals: for example, training providers can be liable for discriminating against those seeking or undertaking vocational training.

 

Employers may be liable for the unlawful actions of their employees or agents. Claims may also be brought against the manager, fellow employee or agent who was responsible for the discrimination, victimisation or harassment in question.

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The EqA 2010 defines “employment” as employment under a contract of employment, a contract of apprenticeship or a contract personally to do work.  Those categories included are:

 

• Employees within the meaning of section 230(1) of the Employment Rights Act 1996 ("ERA 1996").

• Workers within the meaning of section 230(3) of the ERA 1996.

• A wider category of individuals who are self-employed, provided that their “employment” contract obliges them to perform the work personally: in other words, if they are not permitted to sub-contract any part of the work or employ their own staff to do it.

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Under the EqA 2010 there are nine protected characteristics where discrimination is concerned:

 

• Age 

• Disability

• Gender reassignment 

• Marriage and civil partnership

• Pregnancy and maternity - see also Family & Dependant Rights here

• Race 

• Religion or belief 

• Sex 

• Sexual orientation 

 

The Worker Protection (Amendment of Equality Act 2010) Act 2023

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The Worker Protection (Amendment of Equality Act 2010) Act 2023  ("WPA") is a new duty under the Equality Act 2010 which came into force on 26 October 2024.   It requires employers to take “reasonable steps” to prevent sexual harassment of their employees.

 

Employers now have a duty to anticipate when sexual harassment may occur and take reasonable steps to prevent it. If sexual harassment has taken place, an employer should take action to stop it from happening again.

 

An employee must bring a claim against their employer for sexual harassment, and this is successful, a breach of the employment duty will automatically be examined.

 

If an employment tribunal has found an employer liable for sexual harassment, it can also consider whether the employer has failed in its duty to prevent it, and if so, the tribunal can order an uplift in compensation paid to the employee. A breach of the duty may lead to an uplift in compensation by up to 25%. A breach of the duty is also enforceable by the Equality and Human Rights Commission under its existing enforcement powers.

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The Equality and Human Rights Commission’s guidance on sexual harassment for employers has been updated to reflect the new legal requirements under the WPA which can be found here  https://www.equalityhumanrights.com/guidance/sexual-harassment-and-harassment-work-technical-guidance.

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The Acas guide for employers to creating a sexual harassment policy is here: https://www.acas.org.uk/sexual-harassment.

 

There are proactive steps that can be taken by employers to prevent sexual harassment and PW-La are able to provide advice, bespoke training and internal audits looking at organisational cultural change, policies and procedures and where necessary independent investigation and capability management.

 

What compensation can be claimed?

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Compensation is nearly always awarded in successful discrimination cases.   However, in cases of unintentional indirect discrimination, the tribunal must first consider whether making a declaration or recommendation (or both) would be enough to remedy the situation.  Once it has done so (and, if appropriate, made such a recommendation and/or declaration), it may go on to make an order for compensation if it considers it just and equitable to do so.

 

In determining the amount of compensation, the following general principles apply in employment tribunals:

 

• Compensation can be awarded for financial losses (including loss of earnings, pension, and benefits in kind and any out-of-pocket expenses) and non-financial losses (including injury to feelings, personal injury and aggravated damages).

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• Compensation is based on the tortious measure of damage, and so should be calculated so as to put the claimant in the position they would have been in if the unlawful discrimination had not taken place.

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• Claimants are required to take reasonable steps to mitigate their losses.  This means for example finding alternative employment to reduce loss of earnings.

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• There is no upper limit on the amount of compensation that can be awarded.  The scheme used to assess compensation is known as "Vento awards" - see here.

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• Compensation can be awarded against the employer and against any individual respondents, such as other employees.

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Under the new sexual harassment provisions  (the WPA above) - A breach of the duty may lead to an uplift in compensation by up to 25%. A breach of the duty is also enforceable by the Equality and Human Rights Commission under its existing enforcement powers.

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We represent many clients in all discrimination and bullying claims and have considerable experience in these types of claims coming to trial and settling before trial.  We encourage our clients to explore the options to dispose of a claim, and can advise both employer and employee on the best options to take.