Worker Protection Act — what the mandatory duty to protect workers from sexual harassment means for employers

The Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force on 26 October 2024 and impose a new duty on employers to prevent sexual harassment in the workplace.

Here, Kate Venables, Matt Lavelle and Allana Edwards outline what employers need to know to get prepared.

What is the mandatory duty to protect workers from sexual harassment?

From 26 October, employers will be required to take ‘reasonable steps’ to prevent the sexual harassment of employees during the course of their employment.  

It’s considered that the existing protections in the Equality Act 2010 fail to go far enough, with the ‘#MeToo’ movement having exposed the extent to which there has been a failure to prevent sexual harassment globally. 

The new duty applies to all employers regardless of their size or sector and imposes a legal duty on employers to work preventatively (not retrospectively) to address sexual harassment in the workplace.

This will require positive action from employers and must not be seen as a box-ticking exercise. Employers will need to be able to evidence the ‘reasonable steps’ taken to prevent sexual harassment in the workplace.

Reasonable steps

While the ‘reasonable steps’ aren’t defined, they’re likely to include things like:

• Having a clear policy that specifically tackles sexual harassment.
• Mandatory sexual harassment training for all staff.
• Additional training for managers on how to handle a sexual harassment complaint.
• A zero-tolerance culture in relation to sexual harassment.
• Encouraging the reporting of sexual harassment by providing different methods of doing so, with a clear process and support available to those who raise complaints.
• Regular staff surveys to identify the extent of any problems or risks, both internally and in relation to any third parties that employees come into contact with.
• Measures to help minimise the risk of sexual harassment by third parties.
• Monitoring the progress of all complaints.
• Workplace ‘champions’ to promote the company’s policies and stance against sexual harassment.

The Equality and Human Rights Commission is planning to publish its final revised guidance in September 2024, one month before the new changes come into force. This will provide further guidance on what will amount to ‘reasonable steps’. What’s ‘reasonable’ in each case is likely to depend on the size of the employer, available resources and the industry in which it operates. 

What happens if employers don’t comply?

While a breach of the duty will not give rise to a standalone claim, Employment Tribunals have the power to increase any compensation awarded by up to 25% where an employee’s claim for sexual harassment has been upheld. Compensation can cover various heads of loss, including injury to feelings, financial loss, aggravated damages and (in some cases) personal injury. It’s also important to note that there’s no statutory cap on the amount of compensation that can be awarded for sexual harassment claims. This means that in severe cases, awards can be substantial — particularly if a claimant can prove significant financial loss or severe injury to feelings. 

Furthermore, failure to investigate a complaint properly could potentially constitute a breach of the implied duty of trust and confidence, entitling the employee to resign and claim constructive unfair dismissal. Employers may be vicariously liable for the harassing actions of their employees if they can’t demonstrate that they took reasonable steps to prevent such sexual harassment.

Sexual harassment in the workplace can also lead to the loss of valuable employees, discourage new talent from joining and result in significant reputational damage for employers through legal action and negative media attention. 

The new Labour Government has committed to extending the protections in this area further — so more developments can be expected over the coming months. 

Talk to us

We offer a range of cost-effective support packages to enable employers to prepare for the forthcoming changes. These include the preparation of compliant sexual harassment policies and training materials for managers and staff.

If you need advice, talk to us by completing our contact form below.