How schools and academies can prepare for changes to the Equality Act 2010

Two key changes are anticipated as a result of the Worker Protection (Amendment of Equality Act 2010) Act 2023 that employers within the education sector should be aware of. The changes are anticipated to come into force in October 2024, so academies, multi-academy trusts, maintained schools and independent schools are advised to start considering updates and changes to practices to prepare. 

What are the two key changes?

1. The current legislation provides schools and academies a statutory defence to discriminatory action, including sexual harassment, if they can show they have taken all reasonable steps to prevent the discriminatory action. The future legislation changes the term to reasonable steps, lowering the hurdle a school or academy has to meet to argue the statutory defence. This change applies to sexual harassment and does not change the definition when considering other types of discrimination.

2. Schools and academies that  are not able to demonstrate they have taken reasonable steps to prevent sexual harassment could face an increase in any compensation awarded to claimants by up to 25%. This is a similar level of penalisation to schools and academies that do not follow Acas Codes.

Who will the changes apply to?

Because the changes are being introduced by way of an amendment to the Equality Act 2010, the definition of employee and employment will have the wider meaning detailed within the Act and will include workers.

What are reasonable steps vs. all reasonable steps?

Unhelpfully, the current legislation does not define all reasonable steps. The new lower threshold of reasonable steps is also likely to be undefined by the legislation. The Equality and Human Rights Commission (“EHRC”) has confirmed it will update its technical guidance on ‘Sexual Harassment and Harassment at Work’ to reflect the changes. The EHRC have said that the guidance will include what steps employers should consider taking to comply with the legislation, which, once produced, will help with tailoring, changing or updating practices within the workplace relevant to the new legal test.

What can schools and academies do to prepare?

Those working in schools and academies would be wise to get ahead of the changes and consider what steps may be reasonable to prevent harassment within their setting. I would suggest that the following should be considered as a minimum:

• implementing and reviewing appropriate policies - ensure they are effectively enforced

• undertaking risk assessments - identify any specific risk factors and how those risks can be reduced

• implementing effective training (including refresher training) - about acceptable behaviours in the workplace

• review and consider the EHRC’s current technical guidance on Sexual Harassment at Work and what practical steps can be taken now

If you are a member of a senior leadership team or an HR professional in an education setting and would like to discuss how these changes may affect your setting, what steps to take, how to implement these in practice and/ or the delivery of appropriate training, do get in touch. I can be contacted on 01206 217624 or via email at helena.oxley@birkettlong.co.uk