The introduction of the Worker Protection (Amendment of Equality Act 2010) Act 2023 marks a significant shift in how organisations must approach sexual harassment prevention in the workplace. This new legislation moves beyond traditional reactive measures, establishing clear preventative obligations for employers.
Understanding these new requirements is essential, particularly as they focus specifically on sexual harassment – unwanted conduct of a sexual nature that violates dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. This focus is deliberate and reflects years of evidence showing the persistent nature of sexual harassment in workplaces despite existing protections.
It’s important to note that while the Act creates new preventative duties specifically for sexual harassment, it doesn’t extend to harassment related to sex or less favourable treatment for rejecting or submitting to sexual harassment. Though these types of conduct remain unlawful under existing legislation, and preventing them is certainly best practice, it’s important to understand this distinction when reviewing your organisation’s compliance measures.
The introduction of a preventative duty represents a fundamental change in approach. Employers must now demonstrate they’ve taken reasonable steps to prevent sexual harassment, including protection against third-party harassment. This shifts the focus from simply responding to incidents to actively preventing them from occurring.
Understanding ‘Reasonable Steps’
What constitutes reasonable steps will vary depending on organisational context. Employment tribunals will consider factors such as company size, available resources, industry nature, and previous incidents when assessing whether an employer has met their obligations. Beyond these considerations, effective prevention requires a comprehensive, well-documented approach.
Risk assessment forms an essential part of this process. Employers need to identify potential risk factors specific to their workplace environment. These might include late-night working, isolated work areas, customer-facing roles, or workplace social events where alcohol is present. Understanding these risk factors will enable organisations to implement targeted preventative measures.
Consequences of Non-Compliance
The Act introduces significant enforcement mechanisms through both employment tribunal powers and the Equality and Human Rights Commission (EHRC).
In employment tribunal cases, while an employee cannot bring a standalone claim for breach of the duty, the tribunal can award an uplift of up to 25% to any compensatory award if the tribunal finds the employer failed to take reasonable preventative steps.
However, the EHRC’s enforcement powers are broader and more proactive as they can take action even without a specific incident or complaint. This includes the Commission’s ability to investigate and take action against arrangements or practices that could lead to unlawful acts, even if no specific individual has yet been affected. This emphasises the truly preventative nature of the new legislation.
The EHRC can also provide support to workers taking enforcement action against their employers, adding another layer of scrutiny to organisational practices and procedures.
Building an Effective Prevention Framework
Creating an effective prevention framework requires more than just updating policies. Employers need to demonstrate active engagement in prevention through:
- Regular, documented risk assessments that consider all aspects of their operations.
- Comprehensive training programs that go beyond basic awareness.
- Clear reporting mechanisms and investigation procedures.
- Regular review and updates of preventative measures.
- Active leadership engagement in prevention efforts.
The Role of Investigations in Prevention
The role of workplace investigations becomes particularly important under this new framework. When concerns are raised, organisations need to demonstrate not only that they have appropriate investigation procedures in place, but that these procedures are followed consistently and professionally. Well-conducted investigations, particularly those carried out independently, serve multiple purposes: they address immediate concerns, demonstrate commitment to fair process, and importantly, provide valuable insights for prevention.
Independent investigations can be especially valuable in this context. Beyond ensuring impartiality, they often reveal patterns, systemic issues, or cultural factors that might not be apparent to internal teams. These insights can strengthen an employer’s preventative measures, helping to identify risk areas and inform more effective policies and procedures. The lessons learned from thorough, professional investigations become a crucial part of the continuous improvement cycle in harassment prevention.
Moving Forward
While these new obligations might seem demanding, they present an opportunity for employers to strengthen their approach to workplace conduct and culture. By taking a proactive approach to sexual harassment prevention, organisations can:
- Protect their employees more effectively
- Reduce legal and reputational risks
- Demonstrate commitment to workplace safety and respect
- Build stronger, more inclusive workplace cultures
The key lies in understanding that prevention isn’t just about compliance – it’s about creating and maintaining workplaces where all employees feel safe and respected.
Need Support?
Whether you’re handling a specific workplace harassment investigation or reviewing your investigation processes, independent expertise can help ensure thorough, impartial, and professional handling of sensitive issues. Contact me here or email me at ayesha@ayeshawilson.co.uk to discuss how independent investigation expertise can support your organisation while helping you meet your preventative obligations.
