The Worker Protection Act – what does it mean for employers?
By Mix Diversity
Posted on 4 November 2023
The Worker Protection Act, which passed its final stage in the House of Commons on October 20th, represents a seismic shift in how sexual harassment is handled in the workplace.
Spearheaded by the Fawcett Society and its pioneering research, the Act introduces a new requirement for employers to take active measures to prevent sexual harassment.
In legal terms it means that employers, as well as perpetrators, could be liable in any sexual harassment tribunals.
Although many campaigners feel the Act has been watered down – for example requiring employers to “take reasonable steps” rather than “all reasonable steps” as originally proposed, and omitting to include harassment by third parties such as contractors or customers – the Worker Protection Act remains a momentous and welcome addition to the Equality Act 2010. For the first time, the role of workplace culture in both allowing and preventing sexual harassment is being recognised.
What’s especially radical within the Act?
One of the overarching and revolutionary tenets of the Worker Protection Act is the recognition that sexual harassment doesn’t happen in a vacuum.
The new law acknowledges sexual harassment is not as simple as ‘one bad apple’ and that harassment happens, in part, because workplace culture allows it to. It’s a wake-up call for any workplaces subsuming harassment under the guise of workplace ‘banter’, or where efforts to minimise risk are perfunctory, if they exist at all.
The Act means it’s not enough for employers to simply say ‘we didn’t know it was happening’ and issue a slap on the wrists to the perpetrator – the narrative now includes the ‘preventative duty’ of employers, with clear policies, comprehensive training and robust investigations not just a recommendation, but something real and enshrined in law.
The outcomes and risks to employers are also real: for example a 25% ‘compensation uplift’ in cases where employers have failed to provide adequate steps to prevent sexual harassment.
Tribunals should have the discretion to apply an uplift to compensation of up to 25 per cent in harassment claims where there has been a breach of mandatory elements of the statutory code.
House of Commons Women and Equalities Committee
Use the Act as an opportunity to drive positive change
Sexual harassment doesn’t happen in isolation from other forms of discrimination.
In fact, Fawcett’s 2021 report into sexual harassment in the workplace found that people with intersecting identities, such as disabled women or women of colour, are more likely to be sexually harassed.
For employers, then, the Worker Protection Act offers a chance to examine the company culture as a whole and ask: what sort of employer do we want to be? How do we make all our employees feel safer?
Here at Mix we’re providing clients with training in Unconscious Bias, as well as in Gender Parity and Male Allies (built in partnership with Men For Inclusion) alongside our new course on Sexual Harassment.
Having a greater understanding of how discrimination is experienced across different identities will support companies, not just in compliance with the Act, but also in creating a more positive and inclusive work culture for everyone.
Progress in these areas is invariably accompanied by accusations of ‘the Woke Police’, complaints of ‘you can’t say or do anything’, and invocations of Depp vs. Heard as evidence of how ‘women make things up’.
Sexual harassment can be an emotive, contentious subject, and employers will need to work hard to ensure a culture of empowerment, rather than accusation, is developed.
Sadiq Khan’s recent campaign, helping men and boys speak up confidently when they witness language and behaviour towards women and girls that crosses the line, is a positive step in bringing this into the mainstream consciousness.
In the workplace, training in effective allyship and bystander intervention can be fundamental to creating lasting change.
Where to start?
Climate surveys
To understand the specifics of where you are now and where you need to be, consider running an initial, anonymous climate survey on sexual harassment.
How safe do people feel? Do employees feel sexism is taken seriously by the employer? How confident are people in challenging sexist behaviour, comments or jokes at work?
Trying to understand where you are now will help you move forward in a way that makes sense for your organisation and drive change more quickly and impactfully.
If you’ve received little or no reports of sexual harassment in the past, don’t assume this is because you have fostered an amazing workplace where no-one feels sexually harassed.
With 40% of women experiencing sexual harassment at work, the statistical likelihood is that it is (or was) happening, but perhaps people are too scared to report it, don’t know how to report it or fear repercussions if they do.
An absence of reporting of sexual harassment is not indication of an absence of sexual harassment. One in two women are sexually harassed at work. However, four out of five women don’t feel able to tell their employer.
TUC: Guidance on completing an anonymous climate survey on experiences of sexual harassment
If you’d like support creating or interpreting the results of your climate survey, we can help.
Training
Educating leaders and staff with cross-company Sexual Harassment training is, for many organisations, the next step.
Off-the-shelf online learning platforms, like MixLEARN, are designed to shape and distil big, complex conversations into manageable, flexible learning tools, and can be a cost-effective way of delivering training at scale.
Next, you’ll want to dig into the specifics of your organisation, for example what your reporting routes are and where people can find your SH policy documents.
Bespoke training allows you to build on previous, general training and further embed organisational learning.
Sexual harassment training for staff may include:
- • The different types of sexual harassment – verbal, physical and visual – where it can happen and when.
- • Who’s most at risk of sexual harassment, and why?
- • Allyship and bystander intervention practices – both direct and indirect: what you can do if you or somebody else is being harassed
When considering your training options, don’t overlook the importance of training your leaders.
In fact, we recommend many organisations start ‘at the top’.
It’s essential leaders understand what to do if they’re approached with a report of sexual harassment, and precisely what needs to be in a sexual harassment policy to ensure the company is compliant with the Act and provides a safe environment for all employees.
This is something we cover in our sexual harassment for leaders course.
Fawcett have created a free toolkit to help employers understand their responsibilities and create safer workplaces.
You can download the toolkit from the Fawcett website.
Training for leaders may include:
- • Understanding why people don’t report sexual harassment
- • What your sexual harassment policy should include
- • How to change the culture in your organisation to one that works to actively prevent sexual harassment, rather than just punishing perpetrators
- • How people can report sexual harassment – including formal and informal reporting and anonymity – and how to respond to reports of harrassment. This should include the importance of providing multiple reporting routes – if a direct line manager is harassing someone, are there other places the person can go to report the harassment?
Training company leaders first demonstrates that preventing sexual harassment is an organisational priority.
You might consider reinforcing this by adding a statement from the CEO or MD at the start of your sexual harassment policy, or follow Midlothian Council’s example of senior leaders sharing videos pledging to prevent sexual harassment.
This kind of participation tells employees that leaders are taking the issue seriously and can also reassure people who may be experiencing sexual harassment that they will be heard if they speak up.
Mix worked with Fawcett’s Head of Policy and Research, Alesha De-Freitas, to create online training based on Fawcett’s reports into sexual harassment and the menopause in the workplace. Contact us to find out more.
Final thoughts
Legally formalising employers’ responsibility to prevent sexual harassment is a huge step. However, if avoiding liability is the sole driver behind workplace sexual harassment training, nothing will really change.
Employers need to lead from the top and consider how they’ll comply with the Act in an authentic way that goes beyond box-ticking.
This is an exciting opportunity to embed a really positive culture of inclusion in your organisation. It’s an opportunity to help people understand each other a bit better. Employers have until October 2024 to ensure compliance with the Worker Protection Act.
If you’d like to talk to Mix about training, research or consultancy to support change and compliance in your organisation, please don’t hesitate to get in touch.