New UK worker protection law to drive workplace culture change

From 26 October, businesses and employers in the UK are required to take reasonable steps to prevent their employees from experiencing workplace sexual harassment, including worker-to-worker and by third parties like customers and clients. This new mandatory duty has been imposed on employers of all sizes and across all sectors by the Worker Protection (Amendment of Equality Act 2010) Act 2023. 

Employment law expert Kate Dodd of Pinsent Masons said that given the new obligation is a preventative duty, what employers have been asked to do is to transform workplace cultures.

“The new duty requires employers to anticipate risk and take proactive steps to prevent harassment from happening. Of course, it is not always possible to prevent it, but the idea is to focus on prevention rather than punishment or cure. This legislation is intended to sit alongside all the things that employers are already doing to tackle workplace sexual harassment, but to change that mindset so that it is really about prevention,” she said.

The UK’s Equality and Human Rights Commission (EHRC) has made it clear that the way to anticipate and prevent risk is through the use of risk assessments, similar to those used in workplace health and safety.

Ahead of the change in law, the EHRC has published its final revised guidance, providing employers with details on what will amount to ‘reasonable steps’. The term is likely to become ‘all reasonable steps’ as a result of the Employment Rights Bill. Failing to comply with the new duty will lead to enforcement action by the EHRC as well as financial penalties, as employment tribunals will be given the power to apply an uplift of up to 25% on tribunal awards where the duty to prevent harassment has not been complied with.

The change in legislation also gives the EHRC power to take enforcement action where there is evidence of organisations failing to take reasonable steps to prevent sexual harassment. Enforcement by the EHRC can be taken even before an incident of sexual harassment arises.

Emily Blacknell, also of Pinsent Masons, said that these new duties placed on employers will have both short-term and long-term effects on employers. “The first material changes employees will see include changes in policies, posters and organisation-wide communications. However, over time, deeper-level changes such as to behaviours, values and psychological safety within teams can also be expected,” she said.

She added that organisational culture change is difficult to achieve, but the new Act may “do just that”. By enforcing a proactive duty on employers to prevent sexual harassment in the workplace, the way leaders and colleagues speak to each other may differ, she said, and the sort of “jokes” or “banter” could move away from the current norm.

Kieron O'Reilly, diversity and inclusion expert of Pinsent Masons, pointed out that there are three important ‘levers’ to drive behavioural changes and lead to culture change in organisations.

“The first lever is setting the tone of behaviour from the top. For example, having three or more senior leaders of an organisation publicly talking to workers about how sexual harassment will not be tolerated and all reports will be taken seriously,” he said.

The second lever is about taking action. According to the updated EHRC guidance, an example of an action an organisation can take is setting up a senior management development programme for women to encourage and support women into senior leadership positions.

“This not only supports the individuals to develop their own careers, but also helps the senior leaders to hear what challenges are out there and what that looks like, feel like, and how they go about addressing them,” said O'Reilly.

The third lever involves training and reporting. Specific training should be provided to workers and managers to understand what forms sexual harassment may take, and how to activate a ‘speak up’ culture. Anonymous reporting channels for reporting sexual harassment should also be established and publicised. “These two steps are vital in giving a bystander the agency and confidence to respond when a complaint is raised and empowering people to feel safe to report and speak up against sexual harassment,” he said.

Many news articles recently have been covering sexual harassment in large organisations, which have evidenced the need for greater accountability to be placed on the employers. However, Blacknell said that culture change such as this may not be well received by all workers and careful consideration and communications will be needed for employers when making and implementing changes.

“Some individuals may feel their speech and behaviour is being ‘policed’ in the workplace and so employers must tread with caution when communicating the new duties under the Worker Protection Act. Active bystander, active allyship, and inclusive language training is crucial so that individuals understand the purpose and intended impact of the new duty,” she suggested.