After many years of campaigning by the trade union movement and civil society to change the law so that employers, including trade unions, have to take a preventative approach to tackling workplace sexual harassment, the Worker Protection Act (otherwise known as the preventative duty) is finally on the statute books and coming into effect on 26 October 2024.
The new duty is an anticipatory duty, meaning that employers will need to take a proactive and preventative approach to protecting their employees from workplace sexual harassment. As so much of our research has shown, workplace sexual harassment is endemic, and while anyone can experience sexual harassment it is overwhelmingly women who are targeted.
TUC research has found that half of all women have experienced workplace sexual harassment, rising to 7 in 10 for disabled women and LGBT+ workers, but four out of five do not report the harassment to their employer. Many workers fear the repercussions of reporting sexual harassment and the impact it will have on them and their careers, there often aren’t many safe reporting routes for workers, and workplace power dynamics and factors such as insecure working arrangements often mean people feel they have little choice but to either put up with the harassment or leave their jobs.
And this is why this duty is an important move forward in tackling workplace sexual harassment – an absence of reporting does not mean there is an absence of sexual harassment or the cultures that enable it. And now rather than the onus being on victim-survivors to have to come forward before employers are obliged to act, the new duty means employers will have to proactively think about the potential risks in their organizations and take ‘reasonable steps’ to mitigate or minimize them, including risks posed by third party harassment (customers, clients, etc.)
Things employers will need to consider when thinking about risks and how they might reasonably mitigate them include:
The Equality and Human Rights Commission (EHRC) is the body responsible for enforcing the new duty, which can be enforced in two ways:
The EHRC technical guidance has been updated to reflect the new duty and sets out very clear employer responsibilities and actions they can and should take, including risk assessments, having a workplace anti-sexual harassment policy, safe reporting routes, robust, fair investigation processes and training of all employees on workplace sexual harassment.
Trade Unions will have a vital role to play in ensuring that this new duty is effective and challenges sexual harassment in the workplace and the cultures that enable it. As we know, legislation can be a powerful tool but if it doesn’t translate into action, its impact is limited. That is why the TUC has worked with violence against women and girls and culture change experts to develop a toolkit for reps to take into their workplace and negotiate with employers to begin the necessary steps of building a preventative culture. We also have a key role in highlighting good and bad practice and supporting the EHRC to take enforcement action when employers fail to comply with the duty. Workplace reps are well placed to raise awareness of the new duty, bargain for better workplace practices and gather information on what is and isn’t working.
Tackling workplace sexual harassment and building preventative cultures won’t be easy, but this new duty, which was hard won by trade unions and our partners, has the potential to make a significant and positive impact, making workplaces safer for everyone.
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