The Worker Protection Act - What you need to know about Preventative Duty
The Worker Protection Act - What you need to know about Preventative Duty
Sexual harassment remains prevalent in UK workplaces. An estimated 40-50% of women and ~70% of LGBT workers have experienced sexual harassment in the workplace (Source: AGR Law Solicitors, 2024). People of colour report significantly higher rates of sexual harassment (Source: AGR Law Solicitors, 2024). In addition to this, four out of five people report feeling unable to report sexual harassment to their employer.
On the 26 October 2024, the positive legal duty for employers to actively prevent and address sexual harassment of workers in the workplace comes into effect. 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", thereby taking proactive and preventative steps to prevent harassment taking place and stopping reoccurrence.
Rather than redressing past incidents, the Act introduces an obligation for employers to take proactive, reasonable steps to protect their employees from the occurrence of sexual harassment. Read our article on the Worker Protection Act 2023 and its intended impact here.
What does the guidance say?
The Equality and Human Rights Commission (EHRC) has released updated guidance (which can be found here) that defines the obligations and liabilities under the Act and the expectations on employers to comply with the new duty.
- Anticipatory duty: Employers must proactively implement measures to prevent sexual harassment from taking place. This may be done by identifying risks and anticipating scenarios where sexual harassment may occur in the course of employment, in order to implement preventative steps before incidents arise.
- Reasonable steps: The law does not list the specific steps an employer must take to prevent sexual harassment or a prescribed minimum to protect its workers. Instead, “reasonable” steps vary from employer to employer, based on their size, nature of the employer, sector and resources available to it. Employers must conduct a risk assessment relating to harassment, sexual harassment and victimization, and put appropriate safeguards in place, such as training, effective communications, regularly reviewed policies and procedures, and reporting mechanisms.
- Third party harassment: The Duty requires employers to take reasonable measures to not only prevent sexual harassment by their own workers but by external third parties, such as clients or customers. Although the preventative duty includes third party harassment, a worker cannot bring a standalone claim in the employment tribunal for third party harassment.
- ‘The course of employment’: The duty covers acts committed in the workplace and where the worker is working, such as from home, offsite or at external locations (e.g. client meetings). It can also include circumstances where the worker is not working but it is an extension of the employment, such as social gatherings. The strength of the connection is to be decided by the employment tribunal in each case.
What are consequences of not complying?
Harassment at work can have a profound and long-lasting impact on people, employers and society. If an employer does not comply with the preventative duty, the EHRC has the power to take enforcement against the employer. However, the preventative duty does not depend upon an incident of sexual harassment taking place to be enforceable by the EHRC.
Where an employment tribunal finds a worker has been sexually harassed, and compensation paid to the worker, it must consider if and what extent the employer has complied with the preventative duty. If the preventative duty has been breached, the employment tribunals may increase compensation awards by up to 25% of the amount of compensation awarded to the worker under the Equality Act 2010.
Identifying and preventing specific workplace risks
Existing risk management frameworks, such as those used in workplace health and safety, can be used to assess risks relating to harassment, sexual harassment and victimisation. The assessment should identify the risks and control measures identified to minimise the risks. Employers should ensure the risk of sexual harassment in the course of employment is specifically assessed and updated regularly to consider and mitigate new or additional risks. The EHRC has outlined that without carrying out a risk assessment, the requirement of the preventative duty is unlikely to be able to be met.
The risk assessment should consider the following to design mitigating factors to comply with the preventative duty:
- previous cases, near misses and risks
- the nature of the workplace and working environment
- risks such as power imbalances, job insecurity, lone working and night working, working locations (home), attendance at events, socialising out of work, lack of diversity in the workforce
- factors that may increase the risk of sexual harassment, such as gendered power imbalances, night working, casual workforces, employees with more than one protected characteristic, and workplace culture that permits crude or disrespectful behaviours.
Doing what is right can go beyond just compliance
The duty is designed to transform workplace cultures and create safer and more respectful workplaces by holding employers accountable to take positive and proactive reasonable steps to prevent sexual harassment of their workers and address harassment.
Employers need to act now to ensure compliance with the new legal requirements, create respectful and safe workplaces for all employees, and prepare for EHRC oversight, particularly if complaints are made. It is recommended that all employers update their sexual harassment policies and communicate these to their staff and third parties, conduct a risk assessment, review and test your current procedures, implement reporting mechanisms, and ensure that staff at every level are trained. Safeguarding your people against sexual harassment isn’t a ‘once and done’ initiative and must be regularly reviewed and monitored for effectiveness and ensure mitigating actions are comprehensive.
If you would like support with ensuring your organisation is prepared for the preventative duty, please get in touch with Ian Bennington or Darriane Garrett from BDO’s Ethics and Compliance practice.