The new Preventive Duty improves on existing legislation, by ensuring employers proactively take steps to prevent sexual harassment happening at work. Image credit: Shutterstock.
The Worker Protection Act 2023, which comes into forece on 26 October, is an amendment of the Equality Act 2010. It is legislation that the MU has lobbied for, alongside the TUC’s This is not Working Alliance, in the hope that these changes will help make workplaces safer for everyone.
As the Equality and Human Rights Commission (EHRC) states, the new Preventive Duty is “a positive and proactive duty designed to transform workplace cultures”.
The Preventative Duty: what is it and how is it enforced?
The new Preventive Duty improves on existing legislation to protect workers from sexual harassment, by ensuring employers proactively take steps to prevent sexual harassment happening at work.
The new Duty holds employers accountable not only for addressing sexual harassment after it occurs, but also for proactively reducing the risk of sexual harassment occurring in the first place.
Employers will now have to identify when workers may be subject to sexual harassment at work and take action to prevent it. If sexual harassment does occur, employers must take action to prevent it happening again and show the specific measures they have put in place to comply with the new duty. Employers should not wait for a complaint of sexual harassment to be raised before taking action to prevent it.
The scope of the Duty is to all those “in employment”, which has a wide meaning and includes “employees” and “workers”.
Despite the previous Government dropping plans to reintroduce protections from sexual harassment of workers by third parties, the EHRC guidance makes it clear that the Preventative Duty requires employers to take reasonable steps to not only prevent harassment by colleagues, but also by third parties.
Employers who fail to comply with this Duty may be the subject of:
- An EHRC investigation. The EHRC can take enforcement action based on the suspicion of noncompliance and act before there is a claim.
- The Employment Tribunal can increase compensation for a successful sexual harassment claim by up to 25%
What should employers do?
The EHRC has updated their technical guidance on the Preventative Duty and published an 8-step guide for employers on preventing sexual harassment at work.
The guidance includes examples of what might be considered reasonable steps for an employer to take, depending on the risk factors identified.
Some of the actions recommended to employers in the guidance (and the accompanying 8-step guide) include:
- Developing and widely communicating a robust anti-harassment policy, which includes third party sexual harassment.
- Undertaking regular risk assessments to identify where sexual harassment may occur, and the steps that will be taken to prevent it.
- Being proactively aware of the culture of the workplace.
- Monitoring and evaluating the effectiveness of policy and actions.
The EHRC 8-step guide is not a definitive list, and employers must consider their own workplace and the needs of their workforce carefully.
Employers may want to advertise the MU’s Safe Space service and sign up to the Music Sector Code of Practice.
The new Labour Government already plans to strengthen the Preventative Duty to include ‘all reasonable steps’ and to automatically give those who report sexual harassment at work whistleblower status, providing additional protection from victimisation and dismissal.
Why do we need a Preventive Duty?
Sexual harassment is a major issue for MU members and disproportionally impacts women. The Musicians Census Women in Music Insight Report revealed that:
- 32% of women have been sexually harassed while working as a musician.
- 25% of women have witnessed sexual harassment of others.
- Only 11% of women reported the sexual harassment they experienced or witnessed.
- 62% of women reported work related abuse or harassment as a career barrier.
The MU has a long history of campaigning for culture change in the music industry to protect musicians from sexual harassment and in supporting those who have experienced sexual harassment.
Taking steps to prevent successful harassment is not only a legal requirement, but also a crucial part of improving the culture, safety and diversity of the music industry.
If you have experienced sexual harassment at work, you can report it via the MU’s Safe Space service.