The Worker Protection Act – What Employers Need to Know and Do

Against a work environment where sexual harassment and bullying are still widespread, Vix Anderton explains what the new Worker Protection Act is. Now in effect as of the 26th of October, Vix outlines the ‘reasonable steps’ organizations can take to ensure compliance with the new legislation.

Bullying and sexual harassment remain commonplace in the UK. An Irwin Mitchell survey in 2023 found one-third of workers have encountered bullying disguised as banter. Coupled with a surge in reports of harassment at work, it’s estimated that at least 40% of women have experienced workplace sexual harassment, making this is an issue that organizations urgently need to take seriously.

There is a clear need for robust prevention to address these issues. The recently enacted Worker Protection Act, an amendment to the Equality Act 2010, heralds a significant shift in the approach towards preventing workplace sexual harassment.

QUICK LINKS

• Is workplace bullying & harassment widespread?
• What the Worker Protection Act means for employers
• Understanding what harassment and bullying look like
• How employers can get ahead of the Worker Protection Act by taking steps now
• Fostering psychological safety: A cornerstone in preventing bullying and harassment in the workplace
• Navigating the path of reasonable steps

Is workplace bullying & harassment widespread?

There’s no escaping the extent of workplace harassment. A 2020 government study revealed that 1.5 million individuals endure harassment by third parties annually, prompting a commitment to legislate against third-party sexual harassment in 2021. In a 2019 study, 20% of all NHS staff reported they had been bullied within the workplace and 29.9% said they experienced psychological distress due to bullying behaviours (NHS Employers, 2019).

Further, a 2023 study published in the British Journal of Surgery showed that, for women, being around colleagues is more often going to mean witnessing and being a target of sexual misconduct with nearly 90% of women in the surgical workforce witnessing harassment, 63% being sexually harassed by colleagues and 30% being a target for sexual assault in the past 5 years.

Women bear a disproportionate burden. A TUC poll in 2023 found 58% of young women reported experiences of harassment, bullying, or verbal abuse at work. The need for a paradigm shift in addressing workplace harassment is evident, and the Worker Protection Act aims to meet this demand.

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What the Worker Protection Act means for employers

Effective from 26th October 2024, the Worker Protection Act introduces a new duty for employers where the onus is on them to prevent sexual harassment at work. This duty requires employers to take reasonable steps to avert sexual harassment of their employees whilst employed.

Importantly, employment tribunals now possess the authority to increase compensation by up to 25% in cases of proven non-compliance. To guide employers, the Equality and Human Rights Commission (EHRC) is currently consulting on compliance guidance.

The legislation amends the provisions in the Equality Act 2010 to better protect employees from workplace harassment and sexual harassment, shifting the focus from ‘redress’ to ‘prevention’.

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Understanding what harassment and bullying look like

Harassment, as defined by Section 23 of the Equality Act 2010, involves unwanted conduct related to a protected characteristic that violates an individual’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment. Notably, harassment doesn’t need to be intentional; the focus is on the impact on the recipient. To use an analogy, it doesn’t matter if you meant to step on my foot; my foot hurts as a result of you stepping on it.

Harassment also doesn’t need to be experienced by the individual being targeted as anyone witnessing harassment has grounds to make a complaint. This emphasizes the importance of recognizing and addressing behaviors contributing to a hostile work environment.

Harassment manifests in various forms, such as insensitive jokes, lewd comments, deliberate exclusion, and name-calling. Sexual harassment, a prevalent subtype, encompasses unwanted sexual behavior, affecting an alarming one in two women at work. Fear of isolation, trauma, and career repercussions often contribute to the underreporting of such incidents.

In contrast, bullying, though not legally defined, is characterized by the misuse of power to humiliate or injure the recipient. Bullying is not tied to an individual’s personal (protected) characteristics. Recognizable by belittling, mocking, spreading gossip, and other power-driven behaviors, bullying poses significant risks, particularly in environments with established hierarchies.

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How employers can get ahead of the Worker Protection Act by taking steps now

The Equality and Human Rights Commission (EHRC) offers valuable guidance on sexual harassment and harassment at work, providing a roadmap for employers. The upcoming statutory Code of Practice on workplace harassment, scheduled for release in tandem with the new legislation, will further complement these efforts.

But what might ‘reasonable steps’ referred to in the legislation look like? Here are six steps employers can take now to create a psychologically safe workplace where sexual harassment and bullying are not tolerated. Read the Worker Protection Act in full.

1. Develop an effective anti-harassment policy

Review and craft an anti-harassment policy that is clear, comprehensive, and easily accessible to all employees. Clearly define prohibited behaviors, reporting procedures, and the consequences for violations.

2. Engage staff with regular one-to-ones and an open-door policy

Foster open and proactive communication channels through regular one-to-one sessions. Encourage employees to express concerns and provide feedback, creating an environment where issues can be addressed promptly.

3. Take a risk management approach

Conduct a thorough assessment of potential risks related to harassment within the workplace. Identify areas of vulnerability and implement mitigation measures to create a safer working environment. Pay particular attention to areas where there are existing power imbalances, inequalities, and intersecting discrimination risks.

4. Implement a robust reporting system

Consider implementing a reporting system that allows workers to raise issues anonymously or in their name. Promote the system widely to encourage reporting and assure employees of the confidentiality of the process.

5. Train staff on recognizing and addressing harassment

Provide comprehensive anti-harassment training to all staff on what constitutes sexual harassment, how to recognize it, and the appropriate actions to take if they experience or witness such behavior. Equip employees with the knowledge to handle complaints effectively.

6. Take immediate action on complaints

Act immediately upon receiving a harassment complaint. Demonstrate a commitment to addressing issues promptly, which not only supports the victim but also sends a clear message that such behavior will not be tolerated.

Fostering psychological safety: A cornerstone in preventing bullying and harassment in the workplace

Creating a safe and respectful workplace requires more than just legal compliance; it demands a cultural shift. The Worker Protection Act is more than a set of rules; it demands organizations proactively prevent incidents of sexual harassment by changing behavior and supporting more inclusive workplaces cultures.

Addressing sexual harassment necessitates a multi-faceted approach that extends beyond reacting to incidents. Creating psychological safety is crucial to supporting prevention initiatives. It empowers individuals to voice their thoughts, fears, and ideas without the fear of judgment or retribution, creating a workplace culture that acts as a natural deterrent against harassment.

In a culture of openness and respect, the mere contemplation of harassing a colleague becomes a daunting prospect. Conversely, a bleak workplace culture leaves the door wide open for harassment to thrive, leaving victims isolated, unsupported, and afraid to speak up.

Organizations, no matter their size, need to focus on cultivating a culture steeped in respect and empathy. Ongoing training that addresses unconscious biases and microaggressions becomes a catalyst for transformation, challenging behaviors and encouraging individuals to reassess and evolve. This approach benefits not only potential victims but also potential perpetrators, fostering an environment that breathes inclusivity, safety, and genuine collaboration.

Navigating the path of reasonable steps

The Worker Protection Act signals a fundamental shift from redress to prevention of workplace harassment. The legislation, effective from the 26th of October 2024, underscores the importance of fostering a culture of respect and safety.

The strategies we’ve suggested – from developing robust anti-harassment policies to encouraging bystander intervention – are just some of the steps to support organizations committed to creating safe and inclusive workplaces. Beyond legal compliance, these strategies foster a culture where every individual feels heard, supported, and empowered to contribute to a respectful and empathetic environment.