After many years of campaigning by the trade union movement and civil society, the Worker Protection (Amendment of Equality Act 2010) Act 2023, otherwise known as the preventative duty, is finally on the statute books, having come into effect on 26 October 2024. As this is an amendment to the Equality Act 2010, it does not apply in Northern Ireland, which is covered by different equalities legislation.

The Worker Protection Act changes the law so that employers, including trade unions, have to take a preventative approach to tackling workplace sexual harassment.

The new duty is an anticipatory duty, meaning that employers will need to take a proactive and preventative approach to protecting their employees from workplace sexual harassment.

As so much research has shown, workplace sexual harassment is endemic and, while anyone can experience sexual harassment, it is overwhelmingly women who are targeted.

Workplace sexual harassment statistics: why the new law is crucial 

TUC research found that while half of all women have experienced workplace sexual harassment, rising to seven in ten for disabled women and LGBT+ [1] workers, four out of five do not report the harassment to their employer.

Reasons for this include:

• many workers fear the repercussions of reporting sexual harassment and the impact it will have on them and their careers;

• there are often not many safe reporting routes for workers; and

• workplace power dynamics and factors such as insecure working arrangements often mean people feel they have little choice but to either put up with the harassment or leave their job.

This is why this duty is an important move forward in tackling workplace sexual harassment - an absence of reporting does not mean there is an absence of sexual harassment or the cultures that enable it.

Under the new preventative duty, rather than the onus being on victim-survivors to have to come forward before employers are obliged to act, employers will now have to proactively think about the potential risks in their organisations (schools and colleges) and take ‘reasonable steps’ to mitigate or minimise them, including risks posed by third-party harassment, e.g. parents, students, etc.

Employer responsibilities: 15 key risk factors under the Worker Protection Act 

Things employers will need to consider when thinking about risks and how they might reasonably mitigate them include: 

• power imbalances;

• job insecurity, for example the use of zero hours contracts, agency staff or contractors;

• lone working and night working;

• out-of-hours working;

• the presence of alcohol;

• customer-facing duties;

• particular events that raise tensions locally or nationally;

• lack of diversity in the workforce, especially at a senior level;

• workers being placed on secondment;

• travel to different work locations;

• working from home;

• attendance at events outside of the usual working environment, for example training, conferences or work-related social events;

• socialising outside work;

• social media contact between workers;

• the workforce demographic, for example the risk of sexual harassment may be higher in a predominantly male workforce.

How will the Worker Protection Act be enforced? EHRC's role explained

The Equality and Human Rights Commission (EHRC) is the body responsible for enforcing the new duty, which can be enforced in two ways: 

• An uplift in tribunal compensation, up to 25%, where a tribunal finds in favour of the claimant bringing a sexual harassment case and finds the employer also failed to take reasonable preventative steps. ​However, an individual cannot take a tribunal claim against an employer for a breach of the preventative duty alone.

• Strategic enforcement powers for the EHRC to investigate suspected breaches of the duty. The EHRC will be able to investigate suspected breaches of the duty without an incident of sexual harassment having taken place.

The EHRC Technical Guidance has been updated to reflect the new duty and sets out very clear employer responsibilities and actions they can and should take, including:

• risk assessments;

• having a workplace anti-sexual harassment policy;

• safe reporting routes;

• robust, fair investigation processes; and

• training of all employees on workplace sexual harassment.  

Trade unions and the Worker Protection Act: driving change in the workplace

Trade unions will have a vital role to play in ensuring that this new duty is effective and challenges sexual harassment in the workplace and the cultures that enable it. As we know, legislation can be a powerful tool, but if it doesn’t translate into action, its impact is limited.

The TUC has worked with experts in violence against women and girls and culture change to develop the toolkit Preventing Sexual Harassment, which NASUWT Workplace Reps can take into their schools and colleges to negotiate with employers to begin the necessary steps of building a preventative culture.

NASUWT also has a key role in highlighting good and bad practice and supporting the EHRC to take enforcement action when employers fail to comply with the duty. Workplace Reps are well placed to raise awareness of the new duty, bargain for better workplace practices and gather information on what is and isn’t working.  

Tackling workplace sexual harassment and building preventative cultures will not be easy, but this new duty, which was hard won by trade unions and our partners, has the potential to make a significant and positive impact, making workplaces safer for everyone.

Footnotes
[1] The TUC uses the term LGBT+. This covers the same groups as the NASUWT term LGBTI.