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A. The Worker Protection Act is an amendment of the Equality Act, and it requires employers to take steps to prevent the sexual harassment of their workers. Primarily this is an anticipatory duty, and your client has until 26 October 2024 to get their house in order, no employer is exempt.
The Equality and Human Rights Commission (EHRC) has recently released an 8 step guidance to support employers with implementation. The EHRC explains that the duty includes the prevention of sexual harassment of workers by third parties like self-employed contractors, members of the public, customers, and clients.
Currently the law says that a claim for sexual harassment can be brought by workers against their employer, this is because employers are vicariously liable for the actions of their workers when acts of harassment are carried out “in the course of employment”, regardless of whether the employer knows about or approves of those acts. This is usually defended by the employer arguing that it has taken “all reasonable steps” to prevent the harassment from taking place.
Moving forward, employers will need to be able to demonstrate that those steps align with the EHRC guidance. The preventative steps needed will vary from employer to employer and it will depend on various factors like the employer’s size, the sector it operates in, and the risks present in that workplace.
As a minimum, employers should follow the EHRC’s 8 step guidance:
Step 1: develop an effective anti-harassment policy
Step 2: engage your staff
Step 4: reporting
Step 5: training
Step 6: what to do when a harassment complaint is made
Step 7: dealing with harassment by third parties
Step 8: monitor and evaluate your actions
Any measures should be tailored to the specific organisation and regularly reviewed because if it is found that the ‘employer’ could have done more, the EHRC can use their new enforcement powers against employers who have not complied.
Workers can report a concern to the EHRC about the preventative duty being breached. The preventative duty does not depend upon an incident of sexual harassment taking place to be enforceable, so your client will have to be proactive here.
The EHRC can ask the court for an injunction to restrain an employer from committing an unlawful act. They can also enter into a formal, legally binding agreement with an employer to prevent future unlawful act etc.
I would suggest your client starts with a risk assessment to anticipate scenarios where workers may be at risk and implement the EHRC’s 8 steps before the 26 October 2024 deadline.
I would also remind your client that sexual harassment claims are uncapped, and if a claim of sexual harassment is brought to employment tribunal, then the tribunal must consider if and to what extent the employer has complied with the preventative duty. If the employment tribunal finds that the preventative duty has been breached, it may increase the compensation award by up to 25%.
A 25% increase on top of an uncapped award is an ever-present risk for those that do not comply quickly enough.
