The Worker Protection (Amendment of Equality Act 2010) Act 2023: What it means for employees

The Worker Protection (Amendment of Equality Act 2010) Act 2023 is an important step forward for workplace rights, strengthening protections against sexual harassment for employees in England, Wales and Scotland. This Act, which came into force on 26 October 2024, aims to make workplaces safer and more respectful by holding employers responsible for preventing sexual harassment.

Here’s what you need to know about your rights under this new law, including what protections it offers and how it might impact you as an employee or someone representing yourself in a claim.

What is the Worker Protection (Amendment of Equality Act 2010) Act 2023?

This Act amends the Equality Act 2010 by introducing a new preventative duty requiring employers to prevent sexual harassment. It underscores the government’s commitment to strengthening worker rights, particularly in terms of protection from sexual and other forms of harassment. For employees, this means employers are now legally obligated to take proactive measures against potential sexual harassment risks.

Key changes: a closer look at the new preventative duty

Duty on Employers to Prevent Sexual Harassment

The Worker Protection Act 2023 introduces a new duty for employers to take “reasonable steps” to prevent sexual harassment. In practical terms, this means employers are expected to have proactive measures in place, like policies, risk assessments, and training, to help reduce the risk of harassment occurring.

However, it’s important to note that the Act only applies to direct sexual harassment. It does not cover:

• Non-sexual harassment related to other protected characteristics, such as race or religion.
• Less favourable treatment if you reject or submit to sexual harassment.

For these situations, the employer would not have a preventative duty. However, both for direct sexual harassment and for these other situations, employers can still be vicariously liable under the existing law for the actions of their employees. That is, if they do not defend this by showing that they took “all reasonable steps” to prevent it. Note the slightly different wording here - “all reasonable steps” rather than the “reasonable steps” which applies for the new preventative duty.

The difference between the existing “all reasonable steps” defence and the new preventative duty is subtle, but the consequences are significant in that the preventative duty introduces the possibility of a potential uplift in compensation. This means if you make a claim for sexual harassment against your employer, you could get up to 25% more compensation than you would have done before the new law came into force.

What counts as “reasonable steps”

The preventative duty requires employers to take "reasonable steps" to prevent harassment. While there is no exhaustive list, reasonable steps generally include:

• Risk Assessments: Conducting evaluations to identify potential harassment risks, especially in roles with high levels of public interaction.
• Clear Policies: Establishing clear, accessible policies that outline what constitutes harassment and provide a reporting mechanism.
• Staff Training: Ensuring all employees understand the policy and know how to report harassment, including harassment from third parties.

The Equality and Human Rights Commission (EHRC) has published an 8-step guide for employers which gives some more detail around what reasonable steps would generally be expected. If you’re facing sexual harassment at work, the 8-step guide can help you assess whether your employer has taken adequate measures to prevent this.

The standard for reasonable steps may vary depending on the nature of the workplace, but in general, it requires consistent efforts to reduce and respond to harassment risks.

The EHRC has noted in their technical guidance on sexual harassment that employers are unlikely to meet the duty unless they conduct risk assessments to identify and address potential harassment risks.

25% compensation uplift for claims

If you bring a claim of sexual harassment and win, the new law allows for a 25% compensation uplift if it’s shown that your employer didn’t meet their preventative duty. This adds an additional layer of accountability for employers and could increase compensation if they failed to take reasonable steps to protect you.

Enhanced protections under the Equality Act 2010

The Worker Protection Act 2023 works alongside the existing provisions of the Equality Act 2010, meaning that if a Tribunal upholds your sexual harassment claim, it will then consider whether your employer breached the preventative duty. In this sense, the Act enhances your protections under the Equality Act by adding a layer of preventative responsibility for employers.

What’s not covered: Third-party harassment claims

Unfortunately if the sexual harassment you have suffered was by a third party, then you will not have any recourse to the Employment Tribunal to address this. The Act does not explicitly require employers to prevent sexual harassment from third parties (such as customers or clients). Although the EHRC guidance clarifies that the preventative duty extends to sexual harassment by third parties, it’s difficult to see how this will be enforced unless this is done by the EHRC themselves using their enforcement powers. This is because it’s not possible to bring a third-party harassment claim to an Employment Tribunal and you can’t make a standalone claim for breach of the preventative duty.

What does this mean for workers

If you experience sexual harassment, you now have stronger grounds to hold your employer accountable, particularly if they didn’t take clear, preventative actions. The “reasonable steps” duty means that you can examine and question whether your employer:

• Had clear policies in place to prevent harassment
• Conducted risk assessments
• Made reporting processes accessible and known to all employees
• Provided training to both employees and managers on handling harassment

If you’re representing yourself in a claim, these points can be useful to consider and include in your case. They highlight the areas in which employers must demonstrate their preventative measures, allowing you to build a case around how they might have failed to meet their obligations.

Understanding your rights and employers obligations

The Worker Protection Act 2023 is designed to give employees stronger protections and a clearer route to justice if they experience sexual harassment. Here’s what you can do now to prepare:

• Familiarise yourself with your workplace policies: Make sure you understand your employer’s harassment policies and reporting procedures. This will be important if you need to report an issue or make a claim.

• Document any harassment experiences: Keep detailed records of any harassment incidents, including the dates, individuals involved, and any reports you made to your employer. This information can be vital if you decide to raise a claim. You can quickly document and save your notes in Valla in case you need to use them as evidence.

• Know what to expect from your employer: Your employer should have measures in place to prevent harassment. If you notice a lack of support or safety measures, consider raising this with your HR department or manager.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 is a significant step forward in protecting UK workers from sexual harassment. With stronger obligations on employers and the potential for a 25% compensation uplift for claims, this new law aims to make workplaces safer and more accountable. By understanding your rights and what the new law requires of employers, you’re better equipped to navigate and respond to issues of harassment in your workplace.

The EHRC have released updated guidance for sexual harassment and harassment at work. This provides further clarity on what you can expect from your employer under the new law.

For further support or advice on workplace harassment and how to navigate these changes, send a message to [email protected] or book time with one of our legal experts.