The New Worker Protection Act & sexual harassment in the workplace
The New Worker Protection Act & sexual harassment in the workplace
We explore the introduction of the Worker Protection Act 2023; outlining what the Act is, the intended impact, implications for employers and reasonable steps to addressing the compliance requirements. We also explore how employers can go beyond compliance to create a psychologically safe and ethical working environment for their people.
Background to the Worker Protection Act
It has been nearly seven years since the #MeToo movement raised awareness and forced action on the issue of workplace sexual harassment. The campaign encouraged people to speak out about their own experience and worked to reduce the stigma felt by victims. It also prompted organisations and policymakers to take more robust actions against sexual harassment in the workplace.
Sexual harassment remains prevalent in UK workplaces. An estimated 40-50% of women and almost 70% of LGBT workers have experienced sexual harassment in the workplace (Source: AGR Law Solicitors, 2024). People of colour report significantly higher rates of occurrence (Source: AGR Law Solicitors, 2024). In addition to this, four out of five people report feeling unable to report sexual harassment to their employer.
What is the Worker Protection Act 2023?
The Worker Protection Act 2023 comes into effect in October 2024 and places a legal duty on UK employers to actively prevent and address sexual harassment in the workplace. The Act is an amendment of the 2010 Equality Act and holds employers accountable to "take reasonable steps to prevent sexual harassment of employees in the course of their employment".
Rather than redressing past incidents, the Act will introduce the requirement for employers to take reasonable steps to protect their employees from the occurrence of sexual harassment. This includes when employees are working outside of their normal workplace and at workplace social events which will be considered an extension of the workplace under the Act.
At this time, it isn’t clear what these "reasonable steps" will look like. However, as the guidance will introduce a mandate and onus for organisations to define and embed ethical preventative measures into their workplaces to prevent sexual harassment, it will require the urgent proactive assessment of processes, policies and working practices for many UK employers against the new requirements.
The Worker Protection Act states that employees cannot make a standalone claim for a breach of the preventative duty. Only an employee experiencing and reporting an incident of sexual harassment can claim that an employer has failed in their preventative duty. An employee cannot file a lawsuit to a tribunal on the employer’s failure to take reasonable steps to prevent sexual harassment in the absence of an existing sexual harassment claim.
What impact will the Worker Protection Act have?
The introduction of the Act aims to reduce the incidence of workplace sexual harassment and create safer and more inclusive work environments. The impact and expectations under the Act will vary by stakeholder type:
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What actions should employers take now on sexual harassment in the workplace?
The Act does not currently explicitly define what are considered “reasonable steps” to preventing sexual harassment in the workplace.
However, in our experience of the introduction of other workplace legislation, the most effective approach is to be early and proactive. This means that while there is no one-size-fits-all set of actions to take, employers should undertake an assessment of risks taking into consideration their size, resources, workforce composition and other relevant factors.
In preparation for your organisation, suitable and immediate steps might include:
Conduct an independent assessment of your organisation’s risk profile
The review of your risk profile should drive the identification and assurance of the reasonable controls you may already have in place. This review could include an assessment of your culture and your espoused organisational values versus actual behaviours.
Review workforce data beyond complaints and compliance
Are there unusual trends in your staff turnover by gender or demographic? This information along with other metrics such as the number of complaints and/or Non-Disclosure Agreements signed in the last year, can provide early signals that your organisation may have a problem. You should also seek to determine whether your employees trust your complaints process. It is worth understanding any inequalities across employee groups and how these may be shaping responses to any employee surveys.
In essence, you may have to do some detective work to identify if your organisation has a sexual harassment problem – simply relying on an employee survey may not be enough.
Reviewing your policies and procedures
Policies make it clear what is expected in terms of behaviour. However, they do not change or embed culture on their own. You should, at a minimum, ensure that your sexual harassment policy is robust, accessible and communicated regularly, then seek to ensure it is embedded.
How often are key policies communicated and is there a requirement for uplift and additional training? Are your investigation processes timely and fair? What action is taken to deal with reported cases of sexual harassment? You should consider what your reporting, substantiation and sanctions data is telling you about the consistency and fairness of your procedures.
Engaging, training and developing your employees
Your employees should already be receiving training on how to address sexual harassment – either as a victim, bystander or manager. This will help embed your “zero tolerance” culture by embedding and educating your people on what is expected and not tolerated.
You should ensure all training and communication is aligned to risk areas including seasonal events, such as Christmas parties, which have traditionally seen higher occurrence rates of misconduct. Training should also be tailored for different audiences and stakeholders to take into account their roles and responsibilities in reporting and tackling sexual harassment.
People managers play a key role in identifying, challenging and responding to sexual harassment It is important to ensure they have the capability and guidance to respond with empathy, confidence and professionalism.
What are the implications of failure to take ‘reasonable steps’ in prevention?
For employers and organisations, the consequences of failing to fulfil this duty means employers could face significant financial costs from potential fines (up to 25% increase in awarded employee compensation if the tribunal finds the organisation in breach of preventative duties) and the legal costs associated with law cases. In addition, and potentially more costly, is the impact on the organisation’s reputation and brand.
The impact of workplace sexual harassment on victims can be devastating. Victims of sexual harassment often experience both immediate and long-term stress, anxiety and depression.
A psychologically safe and ethical working environment – going beyond compliance
For employers, creating and maintaining a safe working environment for their people has advantages that go beyond compliance or what is ‘ethically right’. A safe environment will also improve the retention, productivity and engagement of all employees. This will also improve the effectiveness and value of the business or organisation.
The consequences of failing to address these issues extends beyond potential financial repercussions, with reputational damages having the potential to cost organisations opportunity, talent and revenue.
If you would like to speak to one of our Ethics and Compliance experts about how to prepare your organisation for the introduction of the Worker Protection Act, please contact Ian Bennington or Darriane Garrett.