Worker sexual harassment protection law implementation prompts challenges for UK employers

The Worker Protection Act 2023 (WPA) came into force on 26 October 2024. The Act amended the Equality Act 2010 and requires all organisations with employees based in the UK to proactively prevent sexual harassment in the workplace.

There has been significant reporting on cases of sexual harassment in the workplace both prior to and since the implementation of the WPA, most recently, at McDonalds. The fast-food chain recently came under scrutiny as new allegations of sexual harassment and abuse surfaced. These followed a series of reports in July 2024, which revealed a “toxic” workplace culture marked by sexual assault, harassment, racism, and bullying. McDonalds, which employs over 170,000 people in the UK, has faced criticism for not adequately addressing the complaints.

The Equality and Human Rights Commission (EHRC) has long been active in investigating claims of sexual harassment in UK workplaces, and ensures steps are taken to prevent sexual harassment of workers across all sectors. Following an EHRC investigation, McDonald’s pledged to improve its workplace environment and ensure the safety and well-being of its employees, with recent disciplinary action resulting in the termination of 29 employees. Notably, the company’s UK CEO was publicly questioned by a parliamentary committee, partly due to the EHRC's investigation.

As we have seen previously with the #MeToo movement, reports of sexual harassment will often start with one or two allegations and then, as public awareness mounts, the number of allegations start to snowball as others find the courage to come forward.  People feel they are more likely to be listened to once similar incidences are on record and companies indicate a changing culture where sexual harassment is no longer tolerated.

What have we learned so far?

Working with clients every day as they strive to meet the new duty, there have been three aspects which organisations seem to have found the most challenging.

Risk assessment

The new ‘duty to prevent’ requires organisations to carry out risk assessments to identify where day-to-day aspects of their business may increase the risk of sexual harassment. For many organisations, risk assessments have historically been relevant only to those involved with health and safety protocols. Whilst the process of assessing risk may be familiar, the context of risk assessments under the new act adds an unpredictable human element to an objective process which many organisations are finding tricky to tackle.

Training

Organisations must also ensure their training on preventing sexual harassment in the workplace meets the requirements of the new duty. Recent Employment Tribunal cases and guidance from EHRC interventions have indicated that e-learning alone is unlikely to be effective in creating change and therefore unlikely to meet the requirements of the new duty. As such, most organisations are refreshing their entire training offering and rolling out specific WPA training to all employees, as well as preparing for new starters. Understandably, designing, delivering, and administrating training relevant to all levels of seniority across the business is a significant task for legal, HR, and management teams to undertake.

Third party risks

Finally, the extension of the new duty to third parties has created an additional level of complexity for many HR teams across the UK. Proactive steps must be taken to protect workers from sexual harassment by individuals such as contractors, customers, suppliers, and service users. Tackling this additional risk whilst also considering the potential issues around worker status claims is keeping many of our clients very busy.

Importantly, the EHRC will investigate organisations regardless of size or number of allegations. An employee can also report an incident of sexual harassment in the workplace directly to the EHRC at the same time as, or instead of, reporting using internal channels at their workplace.

Wherever you are in your journey on implementing the steps required by the EHRC, you are not alone. Working in close conjunction with the Pinsent Masons’ Equality Law team, Brook Graham are experts in implementing initiatives that meet the new proactive duty and provide solutions for a cultural shift in attitudes towards harassment in the workplace.

Co-written by Emily Blacknell of Pinsent Masons.