Talking about What’s ‘Reasonable’
The Worker Protection Act 2023 comes into force on 26th October 2024; employers must prepare for the new legal obligations surrounding sexual harassment in the workplace. The Act, which amends the Equality Act 2010, places a duty on employers to take “reasonable steps” to prevent sexual harassment, with significant financial and reputational risks if they fail to comply.
The Evolution of the Law
Historically, employers have been vicariously liable for acts of sexual harassment committed by their employees. The new legislation strengthens this position by formalising the requirement for proactive prevention. Employers who fail to take adequate measures could face a compensation uplift of up to 25% in tribunal awards to victims.
The roots of this legislation lie in high-profile movements such as #MeToo and subsequent government consultations, which revealed widespread issues with sexual harassment in the workplace. After a lengthy consultation process starting in 2019, the Worker Protection Act was passed to address gaps in existing protections.
What Constitutes Sexual Harassment?
The definition of sexual harassment remains unchanged: it is unwanted conduct of a sexual nature that violates a person’s dignity or creates an intimidating, hostile, or offensive environment. Crucially, the victim’s perception is key, with no requirement for intent from the perpetrator, and even third-party witnesses can file claims. Employers must be mindful that inappropriate behaviour isn’t limited to overt actions—silence, body language, and even seemingly harmless jokes can fall into this category.
Employer Responsibilities Under the New Duty
From 26th October 2024, employers must:
- Take reasonable steps to prevent sexual harassment.
- Anticipate potential issues, even those arising from third parties like clients, customers, or members of the public.
- Conduct risk assessments, engage staff on these risks, and implement effective anti-harassment policies, training, and reporting procedures.
- Keep records of actions taken and continually monitor and evaluate the effectiveness of their prevention measures.
While no exhaustive list of “reasonable steps” exists, guidance from the Equality and Human Rights Commission (EHRC), expected to be finalised soon, provides key points for employers to consider.
Risks of Non-Compliance
Failing to meet these requirements could have significant consequences, including tribunal claims, bad publicity, and internal conflicts such as grievances. By engaging with staff, promoting a caring workplace culture, and addressing harassment risks, employers can reduce the likelihood of claims, and the reputational damage associated with sexual harassment cases.
In summary, the Worker Protection Act 2023 calls for businesses to move from reactive to proactive in preventing sexual harassment. As the enforcement date approaches, employers must review their policies, conduct risk assessments, and take clear, actionable steps to safeguard their employees.
Our Expert
For more information or to discuss how to ensure compliance, Mike Cole at Penningtons Manches Cooper offers legal guidance and risk assessments to help organisations prepare for these changes.
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