A look at what the new preventative duty set out in the Worker Protection Act 2023 requires, highlighting both the training we can deliver and some resources we have collated to help employers prepare for its introduction this autumn.
Coming into force this October, the Worker Protection (Amendment of Equality Act 2010) Act 2023 increases the obligations of employers to prevent sexual harassment in their workplaces.
What is changing?
The new duty will require employers to make a material change from reactive to proactive procedures. Instead of reacting to complaints, employers will be required to take steps to prevent harassment from occurring in the first place.
Current position - under the Equality Act 2010, employers can be held liable for the sexual harassment of employees (whether or not the harassment occurred with the employers’ knowledge or approval), unless they can prove that they have taken steps to prevent it.
Position from 26 October 2024 - the new Worker Protection (Amendment of Equality Act 2010) Act 2023 puts a duty on employers to be proactive and take ‘reasonable steps’ to prevent sexual harassment of their employees in the workplace. The Equality and Human Rights Commission (EHRC) will have the power to take enforcement action against employers who breach the preventative duty. Employment tribunals will also have the power to increase compensation for sexual harassment by up to 25% if an employer is found to have breached the duty.
A commonly reported point - many critics are disappointed at what they see as a ‘watering down’ of the bill during the legislative process with two significant changes having been made. The word ‘all’ has been removed from an employer’s requirement to take ‘all reasonable steps’ and there is no protection for employees from harassment by third parties. They don’t feel the law goes far enough. However, the duty still goes farther than the current advice of taking steps to prevent sexual harassment and the new Labour Government has committed to strengthen the duty so there may be further change in the future.
Is there a definition of “reasonable steps”?
The Equality and Human Rights Commission (EHRC) published a technical guidance document earlier this month and is seeking feedback on it by 6 August. We have included a link to it in our new resource section on this topic which is highlighted in the next section.
Paragraphs 3.28 to 3.36 of the new guidance section provides essential reading regarding reasonable steps. They include that what is reasonable, and whether an employer has taken reasonable steps, will be an objective test. This will depend on the facts and circumstances of each situation, listing factors that are, and others that may also be, relevant.
Exact actions regarding taking reasonable steps may therefore be specific to individual organisations. However, steps could include:
- Setting up/updating coherent anti-harassment policies, including considerations regarding third parties that employees may be in contact with during their employment
- Creating awareness and understanding i.e. through training for every employee at every level as part of a wider array of Organisation development interventions
- Developing and promoting clear reporting procedures
- Putting effective systems in place for investigating and addressing any incidents that are reported
- Articulating anti-harassment campaigns/messages and how the associated organisation values can be enacted to reinforce a culture of respect and value for all
Looking for help preparing for the new legislation regarding harassment at work?
There are 2 ways we are able to help organisations prepare for the introduction of the new law in October.
1. Resources – in line with our ethos of providing further helpful reading around the topics we specialise in; we have added a new section to our Tackling Sexual Harassment at Work resources page with various resources to help employers prepare for the new duty.
2. Training – along with our current training courses to develop awareness and understanding of all aspects around dignity at work, we can also offer specific courses to help employers with the training aspects the new duty presents.
For example -
(i) training can be delivered to all staff to help raise awareness and understanding of rights relating to sexual harassment at work, and the relevant internal policies.
(ii) training can be delivered for managers to help support them in dealing with complaints. This could include a section on thinking about and actioning reasonable steps to prevent the sexual harassment of workers by third parties.
(iii) a yearly refresher training course for management and staff.
Tackling harassment at work can include many benefits
Although change never occurs without overcoming challenges, it is hoped that the new duty will lead to positives for both individuals and organisations. Through the creation of a psychologically safer workplace culture, morale and productivity will have the opportunity to blossom. Employees may prove more loyal, reducing turnover and the costs to employers when this incurs. Add to that the reputational advantage of being seen as a responsible employer and the new talent this can attract whilst minimising the risk of costly legal claims and negative PR.
Equilibrium Associates Limited (In Equilibrium) will not accept liability for any loss, damage or inconvenience arising as a consequence of any use of or the inability to use any information on this website. We are not responsible for claims brought by third parties arising from your use of in-equilibrium.co.uk
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