On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force. The Act introduced a new proactive duty on employers to take reasonable steps to prevent sexual harassment of their workers and employees. For further details on how this impacts employers, see our October 2024 insight, Sexual Safety at Work: Employer Duties Explained.  

In this insight, we look at the legal obligations that apply to regulatory bodies (in addition to their duties as employers) and what this preventative duty is likely to mean for regulators in dealing with referrals. 

Legal obligations on regulators  

Whilst the preventative duty applies to regulators in their capacity as employers, it does not strictly apply to how they execute their regulatory functions.  

Nevertheless, regulators will be aware that they must comply with the public sector equality duty (PSED) requiring them to have due regard to the need to: 

• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010 
• Advance equality of opportunity between people who share a protected characteristic and those who do not 
• Foster good relations between people who share a protected characteristic and those who do not 

As such, regulators are likely to be expected to ‘set the tone’ for both their registrant body and their employers and standards within the relevant profession. Agreement between regulators as to the approach to be taken to the triaging of referrals and fitness to practise decisions would not only lead to a consistent approach between regulators and employers, send a clear message as to expected behaviours, but also go towards compliance with the PSED in respect of sexual safety.  

Compliance with the PSED is enforced by the Equality and Human Rights Commission, and a failure to comply may result in judicial review.  It may be that applications for judicial review (which can be made by the EHRC or by a person or group dissatisfied with a regulator’s decision or approach) will be where regulators will see the PSED bite in relation to sexual harassment cases, i.e. challenges to an actual or perceived failure to uphold standards.

Impact  

We expect that the changing societal approach to sexual harassment, the increased action by public sector organisations (as demonstrated by the NHS sexual safety charter), together with the new and increased preventative duty on employers across sectors, will all result in an increase in referrals in respect of recent and historic sexual harassment allegations. 

These types of allegations provide additional levels of complexity that need to be considered from the outset; the facts around the allegations are often highly emotive, there may be a lack of documentary evidence, a resultant need for speedy gathering of witness evidence, and a keen public eye on the regulatory process.

This may require regulators to: 

• Adapt their approach to initial assessments/triage of referrals of this nature 
• Review their approach to how seriousness is determined 
• Consider how a consistency of approach can be achieved amongst regulators 
• Consider the support that is provided for both registrants and witnesses 
• Proactively manage the expectations of employers, complainants and practitioners 
• Review their approach to how and when historical allegations will be dealt with 

Risks and how to address them 

A regulator’s approach to sexual misconduct allegations could result in claims/challenges from both the complainant and/or the regulated individual, whether through judicial reviews, civil actions, or an Employment Tribunal.  

Common themes/allegations that we routinely see in claims and threatened action against regulators include: 

• Unconscious and conscious bias 
• Delay 
• Lack of transparency 
• Lack of communication 
• Failing to deal with complaints 
• Lack of empathy 
• Failing to acknowledge any wrong doing 

Regulators can address these issues and mitigate the risks of challenges/complaints by providing clarity on the process from the outset and by providing regular updates on progress to manage expectations of parties involved: 

• Why are you / are you not investigating the concern? 
• What information is this based on? 
• What is the process being followed? 
• What is expected of the individual, and what should they expect from you? 
• What are the proposed timeframes? 
• Inform them of the progress you have made, and explain any delays 

How Capsticks can help 

Capsticks has significant experience of supporting employers and regulators to prevent discrimination and harassment, from implementing policies promoting sexual safety in the workplace, drafting equality and diversity policies, assisting with the review of current practice and implementing change, to delivering training to employees at all levels. We also deal with any complaints or specific issues that may arise in individual cases, supporting decision makers and HR, and defending any legal challenges including judicial review claims. 

Recordings of our recent events on this topic – a webinar on Sexual Safety in the Workplace and a Mock Employment Tribunal - are available to watch ‘on demand’ here and here. For further information on how we might assist your organisation, please contact Nicola Green, Jonathan Lewis and Keziah Pearson.