Understanding Your New Responsibilities

The Worker Protection Act introduces what's known as a "preventative duty" – a legal obligation that goes beyond simply responding to complaints when they arise. Understanding exactly what this means in practice is crucial for every employer, regardless of size or sector.

The Preventative Duty Explained

At its core, the preventative duty requires employers to take reasonable steps to prevent sexual harassment of their employees. This duty applies from an employee's first day to their last, covering all aspects of their working relationship with the organisation.

Crucially, this is about prevention, not just reaction. You cannot wait for incidents to occur before taking action. The law now requires employers to anticipate potential harassment situations and implement measures to prevent them from happening in the first place.

The duty extends beyond your office walls. It covers employees when they're working in different locations, attending work-related social events, travelling for business, or any time they're acting in the course of their employment.

This broad scope means employers need to think about all situations where their staff might be vulnerable to harassment.

Who Does it Apply to?

Every employer in England, Scotland, and Wales is subject to this legislation, regardless of organisation size. The law covers all employees, workers, and those in employment-like relationships.

The duty specifically focuses on preventing sexual harassment, which is defined as “unwanted conduct of a sexual nature that has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment.”

What "Reasonable Steps" Actually Means

While the Act itself does not provide examples of what counts as “reasonable steps", Sarah Valentine provides practical insight into how employers should interpret their obligations:

"The approach may vary by industry or employer size. Larger organisations may face higher perceived risks due to having more employees, likewise, organisations with significant power imbalances, younger staff, or the need for staff to meet clients alone may be considered higher risk. As such, more measures should be put in place to mitigate this risk and prevent harassment.”

Additionally, the Equality and Human Rights Commission has updated its technical guidance on sexual harassment for employers, which states employers should:

consider the risks of sexual harassment occurring in the course of employment
consider what steps it could take to reduce those risks and prevent sexual harassment of their workers
consider which of those steps it would be reasonable for it to take
implement those reasonable steps

The Financial Impact

The Act introduces two significant financial risks for non-compliant employers:

Enhanced Tribunal Awards

Employment tribunals can now increase compensation by up to 25% where an employer is found to have breached their preventative duty. This applies when an employee successfully brings a harassment claim and demonstrates that their employer failed to take reasonable steps to prevent it.

EHRC Enforcement Action

The Equality and Human Rights Commission can now take action against employers for failing to meet their preventative duty, even if no harassment incident has occurred. This could result in financial penalties, mandatory training requirements, policy development obligations, improved reporting systems, or other compliance measures.

It's important to note that employees cannot make a standalone claim solely for breach of the preventative duty. Any claim must be pursued alongside an existing harassment complaint, meaning an employee needs to have experienced and reported harassment to claim that the employer failed in their preventative duty.

Evidence & Documentation Requirements

When it comes to demonstrating compliance, Sarah Valentine explains what employers should be prepared to present:

"Although there are currently no reports of tribunal cases brought under the 2023 Act, and it is unclear what weight evidence may be given, examples of relevant evidence might include:

Training or induction records for staff, with the prevention of sexual harassment as a topic;
Policies for sexual harassment prevention, including their review dates and any revisions;
Evidence of warnings or communications given to staff before work events to encourage reasonable behaviour, including the amount of drinks supplied by the organisation;
Written processes or staff guidelines for reporting sexual harassment or situations where they feel at risk; and
Past instances or reports of sexual harassment.

She adds: "An organisation with no reports of previous sexual harassment and few steps in place to prevent this may be seen as taking reasonable steps compared to an organisation with numerous reports but little action taken."

This highlights the importance of maintaining comprehensive records of all preventative measures, training activities, policy updates, and communications with staff about harassment prevention.