Preparing for the Worker Protection Act  

Sexual harassment remains a pervasive issue in too many workplaces across the UK, its alarming prevalence having profound impacts on businesses and individuals alike. According to the Equality and Human Rights Commission’s (EHRC) 2018 report ‘Turning the tables,’ three-quarters of respondents (predominantly women) reported experiencing sexual harassment at work. More recently, a 2024 report by the Treasury Select Committee revealed that a staggering 45% of workers experienced sexual harassment in the financial services sector. This pressing issue not only affects worker wellbeing, workplace morale and productivity but also poses significant legal and reputational risks for employers. 

Under the Equality Act 2010, employers can be held liable for sexual harassment carried out by their employees and for failing to prevent harassment of staff. However, in a move designed to enhance worker safety, the Worker Protection Act 2023 amends the Equality Act by shifting the focus for employers onto prevention rather than redress.  As such, from October 2024, employers will have a duty to proactively prevent sexual harassment from occurring in the workplace.  

What does the UK currently require employers to do regarding sexual harassment?  

The Equality Act 2010 protects individuals from sexual harassment at work, defining sexual harassment as unwanted conduct of a sexual nature. For the unwanted behaviour to qualify as sexual harassment, it must have either violated someone’s dignity or created an intimidating, hostile, degrading, humiliating, or offensive environment. Importantly, the conduct need not be sexually motivated, only sexual in nature. This includes a wide range of behaviour, such as sexual comments or jokes, displaying sexually graphic pictures or photos, suggestive looks and propositions, as well as unwanted physical contact and ‘banter’. 

While anyone who engages in sexual harassment is accountable for their own behaviour, there are also implications for employers.  Under existing legislation, employers could be held vicariously liable for proven sexual harassment in the workplace. As such, employers should take steps to prevent sexual harassment as these efforts could be used as a defence should they face a claim in front of an employment tribunal. Under the new legislation, that advice to prevent, becomes a duty. 

How will the Worker Protection Act 2023 differ from existing obligations under the Equality Act 2010? 

While best practice for compliance with the Equality Act would be to take reasonable steps to prevent sexual harassment, the Worker Protection Act now mandates it. This new duty requires employers to proactively identify situations where its workers may be at risk of sexual harassment in the course of employment and take action to prevent such harassment from taking place. This exercise should be undertaken regardless of whether or not an incident of sexual harassment has occurred.   

During parliamentary debates, the scope of the obligation was reduced to exclude explicit protection from third parties, such as clients or customers. However, the Equality and Human Rights Commission (EHRC), the body responsible for enforcing the Equality Act 2010 and ensuring the rights contained within it are expected, has recently indicated that the duty to take reasonable steps to prevent harassment extends to third party behaviour. Additionally, as indicated in Labour’s Plan to make work pay published in the run-up to the general election, it is likely that the new Labour government may seek to explicitly reintroduce employer liability for sexual harassment by third parties into the new Act. Labour’s plan also mentions the possibility of expanding the duty by requiring employers to take “all reasonable steps” to protect workers from sexual harassment in the course of their employment. 

Sanctions under a double enforcement regime  

Enforcement of the Worker Protection Act (the Act) rests with two entities: the EHRC, who may take enforcement action against employers who fail to adequately prevent sexual harassment, and employment tribunals. 

Under the existing mandate, the EHRC could respond to whistleblowing reports and allegations of employers failing to adequately protect their employees from sexual harassment at the workplace. However, the preventative duty now allows the EHRC to use its enforcement powers, even if no incident of sexual harassment has occurred. As such, formal investigations can be initiated when it has reason to believe that there is a risk of sexual harassment in the workplace and that the employer may not have complied with the preventative duty. 

If the EHRC finds evidence of an employer’s failure to put in place reasonable measure to prevent sexual harassment, it can enter into legally binding agreements directly with the organisation to ensure the necessary measures to comply with the preventative duty are implemented. If the organisation does not cooperate, the EHRC also has the power to issue an Unlawful Act Notice directing the employer to develop an action plan to remedy any breach of the Act and prevent future breaches.  

In the case where an organisation fails to follow the agreed action plan, the EHRC can pursue an injunction order to enforce compliance. Failing to comply with an order without a valid excuse can lead to a ‘level 5’ fine, which has no maximum limit. In addition, the EHRC can publish information relating to an organisation’s breach, potentially leading to significant reputational impact for companies.  

The new Act also increases the penalties employers may face if an employment tribunal finds them liable for a case of sexual harassment occurring at work. Unlike the EHRC, employment tribunals can only hear cases where sexual harassment is alleged to have taken place and a claim has been brought by an individual against their employer. Under the new law, tribunals are now required to consider whether the employer complied with the preventative duty when handling any claim of sexual harassment. If the employment tribunal finds that reasonable preventative steps had not been taken by the employer, any compensation awarded to the victim for the sexual harassment claim could be increased by up to 25%. Given that employment tribunal awards for claims under the Equality Act can stretch to six-figure sums, this uplift could lead to significant financial penalties. 

Implications for businesses of the Worker Protection Act  

With the Act coming into force on the 26th of October 2024, employers should start evaluating what the forthcoming legislation means for their organisation and the steps that might be needed to prevent harassment from occurring in their workplaces.  

In July 2024, the EHRC published updated guidance to help employers comply with new positive duty to prevent sexual harassment in the workplace. A consultation process is currently underway to ensure the guidance is both clear and effective. The new guidance describes the four steps that organisations should take to comply with their preventive duty, which are: – 

• consider the risks of sexual harassment occurring in the course of employment 

• consider what steps it could take to reduce those risks and prevent any sexual harassment of workers 

• consider which of those steps it would be reasonable to take 

• implement those reasonable steps 

Specific guidance on what constitutes reasonable steps has not been provided, as these are objective measures and may vary from workplace to workplace. However, employers should carefully review their current measures, considering any risk factors uniquely linked to their business activities to identify and implement improvements.  

In order to determine the reasonable measures needed, employers should take the following key steps: – 

1. Adopt a risk-based approach. The new preventative duty calls for a paradigm shift in managing risks of sexual harassment at work, akin to the evolution seen in health and safety practices over recent decades, culminating in a zero-incident approach. Organisations should conduct a risk assessment to understand the nature and extent of sexual harassment within the workplace and identify if and where the risks are present to determine any necessary action. The assessment should consider factors likely to increase the risk of sexual harassment such as the nature of the industry, third-party interactions and gender imbalances involving disparities in representation, power, pay, opportunities and the fair treatment of staff in the workplace. 
2. Review policies and procedures to assess if they are fit for purpose. For instance, organisations may want to consider whether a separate policy on sexual harassment is required, or if amendments could be made to the code of conduct to reflect the organisation’s stance on sexual harassment. Special attention should also be given to ensure the adequacy of reporting systems and response procedures.  
3. Establish a strong tone from the top. Leaders must actively communicate and implement a zero-tolerance approach. They are responsible for setting the tone and demonstrating senior leadership commitment to the creation of a safe and respectful workplace.  
4. Review workplace culture. Organisations should reflect on whether the workplace culture empowers workers to report issues and hold individuals accountable. Employers can begin by updating staff surveys to include questions about how comfortable workers feel about raising concerns and whether they believe their concerns would be heard and dealt with adequately. 
5. Communicate and train workers. Workers at all levels should receive education on expected behaviour standards, identifying unlawful conduct, and their rights and responsibilities in maintaining a safe, respectful and inclusive workplace. Reporting options and support channels should also be regularly shared with the workforce.  
6. Monitor and report on incidents of and attitudes towards sexual harassment. Employers should collect data on an ongoing basis on sexual harassment to understand its nature, improve work culture and update its approach to preventing incidents. Additionally, organisations should be transparent about reported behaviours and actions taken to address them.  

In Summary  

Sexual harassment can have a highly negative impact on an organisation, causing long-term damage to employee well-being and workplace culture. Stakeholders want to see a proactive zero-tolerance approach to harassment, in particular sexual harassment, and the Worker Protection Act presents a crucial opportunity for organisations to conduct a comprehensive review of their approach to sexual harassment and implement measures to prevent any incident from occurring. Consultation should be a pillar of organisation’s strategy to prevent sexual harassment. Employees will provide the most valuable insight into the issues that affect them, providing a deeper understanding of concerns that will help determine appropriate actions needed. Any workforce engagement should take particular care to ensure the perspectives of individuals from underrepresented and marginalised groups are recognised and addressed.  

How GoodCorporation can help

GoodCorporation has more than 20 years of experience helping organisations create ethical and inclusive business cultures. We can help your company identify and address harassment issues, assess workplace culture, and develop and embed effective training, policies and reporting structures to prevent sexual harassment from occurring. For further information, contact us here.