Navigating change - an insight into the Worker Protection Bill

The Worker Protection (Amendment of Equality Act 2010) Bill introduces a duty for employers to take reasonable steps in the prevention of sexual harassment of their employees during the course of their employment. The Bill received Royal Assent in October becoming the Worker Protection (Amendment of Equality Act 2010) Act 2023. The Act will come into force one year after the day on which it was passed, which will be October 2024.

Background and rationale

The Women and Equalities Select Committee published a report in 2018 which highlighted the extent of sexual harassment in workplaces across the UK. They recommended that the existing laws be enhanced to increase the responsibility for employers to shield their workers from harm.

The Government were therefore prompted to act to conduct their own consultation, particularly as groups such as the Fawcett Society highlighted a growing concern about workplace harassment. As a result of this consultation it was revealed that 54% of those who had responded had experienced some form of harassment.

During its passage, there was contention relating to the compromises undertaken to some aspects of the Bill. In its initial draft, the Bill sought to reintroduce employer liability for the harassment of employees by third parties, such as customers or suppliers.

The House of Lords made two amendments to the final version of the Bill, removing the requirement that would be placed on employers to prevent third-party harassment in the workplace and narrowing the obligation on employers to take 'reasonable steps', rather than the proposed 'all reasonable steps' to prevent sexual harassment. Whilst not clearly defined, the removal of the word "all" seems to lower this responsibility placed upon employers.

Key provisions of the Act

The Act sets out an amendment of the Equality Act to introduce a duty upon employers to take reasonable steps to prevent sexual harassment of their employees and to give Employment Tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is held to have breached this new duty.

The Equality and Human Rights Commission (EHRC) will also have separate powers of enforcement and it would seem that there is an intention that the EHRC will play an active role in preventing sexual harassment in the workplace.

The uplift to compensation will only take effect if an employee succeeds in a claim against their employer, which will no longer be available for cases of third-party harassment. The uplift will apply to the entire compensation amount awarded in respect of the sexual harassment claim, which could be costly for employers where a claim succeeds that contains multiple incidents of harassment of this nature.

How your organisation can prepare

In light of the Bill's coming into force in October 2024, employers should now prepare to think about taking a proactive approach to ensure they are taking reasonable steps to prevent sexual harassment.

It is fundamental to ensure that your training and workplace policies are fit for purpose and followed by all staff. There are risks associated where training, due to a lapse in time, is no longer effective, as was found in the case of Allay (UK) Ltd v Gehlen. In this scenario, the Employment Appeal Tribunal found that the employer could not rely on the 'all reasonable steps' defence to a claim of harassment, as the training provided to its employees in early 2015 (less than two years prior to the Claimant's dismissal in September 2017) had become 'stale'. This reinforces the need for employers to provide regular, good quality refresher training in order to ensure that the training is not forgotten and doesn't become 'stale'.

Recognising the risks associated with outdated policies and training is essential, and employers should therefore proactively update their policies to align with this new obligation placed on employers. Therefore, it is vital for you to have effective and up-to-date policies that are implemented and understood by all staff.

Staying ahead of these changes not only ensures compliance with the law but also fosters a workplace culture of respect and inclusivity. This can be achieved by taking proactive steps, such as setting up clear reporting mechanisms, implementing policies tailored to support individuals and designate workplace equality champions, to name a few.