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The piece of legislation in question is, formally speaking, the ‘Worker Protection (Amendment of Equality Act 2010) Act 2023’ – also now being referred to in legal circles as the WPA.
The first thing to discuss here is the process of this legislation’s journey to fruition – which should be interesting to anyone studying Public Law (more specifically the Constitutional aspect), as is a compulsory topic on an English qualifying law degree. This legislation actually started off as a private member’s bill (PMB), being co-signed by two Liberal Democrat politicians – MP Wera Hobhouse in the Commons, and peer Baroness Burt of Solihull in the Lords.
The Act was eventually adopted by the Conservative government, who pushed it through in October 2023, when it received Royal Assent on the 26th October. As is often the case, a commencement clause delayed the start date until one year later, on the 26th October 2024 (meaning it is now active).
Successful PMBs are relatively rare in general – the government of the day (in October 2023, the Tories) typically dominate the schedule, and so it is usually government ministers who are able to get timetable slots in order to push through legislation. PMBs are a rare opportunity for backbenchers to get a chance to introduce new legislation to the house – though there are limits, a few examples of which are laid out below:
A huge number of PMBs are introduced (data suggests more than 2,500 between 2010 and 2024), though very few actually end up making it all the way. Only 110 have received royal assent, the final hurdle for a piece of legislation – though the number of successful PMBs is on the rise.
Another point of interest here might be the fact that the House of Lords wanted to adjust the wording of this specific Bill and send it back to the Commons (a process known as ‘ping pong’).
The final draft now says employers must take ‘reasonable steps’ rather than ‘all reasonable steps’. This is a chance which might seem relatively small, but all lawyers will know even minor adjustments can make a huge difference when it comes to statutory interpretation.
Broadly speaking, this is not an entirely new set of rules – as the name of the legislation implies, it is really an amendment to the hugely influential Equality Act 2010.
Employees already have the right to go to an employment tribunal if they have experienced sexual harassment in the workplace (generally speaking). This new legislation puts extra pressure on employers by saying (via the newly formed s124A of the Equality Act 2010) that if the employer is found to have failed to take ‘reasonable steps’ to actively prevent the sexual harassment from taking place, the compensation awarded to the employee can be increased by up to 25%. This is at a maximum – only time will tell how widely this discretionary power will be used.
One criticism so far has been the fact that equality campaigners from other groups protected by the Act feel the 25% ‘reasonable steps’ added rule could have been rolled out more widely. For example to cover harassment based on race, gender, disability, etc.
Others have noted that, while the Tories arguably took a step forward on this issue, they also repealed s40 of the Equality Act in 2013. This removed the provision which allowed employees to accuse their employers of being vicariously liable (a compulsory topic covered on many Tort Law courses in England) for the conduct of third parties, which narrowed the scope of protection already massively. The phrase ‘shake your hand and stab you in the back at the same time’ perhaps comes to mind.
Of course, another obvious criticism is the fact that the phrase ‘reasonable steps’ (as with a great deal of legislation) is rather vague, and could benefit from being much more precise (from both an employee and employer perspective, creating more certainty).
The new legislation is obviously a response to increased demands for accountability in regard to sexual harassment in the workplace and, indeed, sexual harassment in a broader sense, which statistics show is a growing problem across society. A key factor leading to this new law’s creation was the 2018 report from the Women and Equalities Select Committee aka WESC (select committees being a powerful force within Parliament). This identified that a staggering 40% of women had experienced sexual harassment in the workplace.
Separately, a huge number of employers have admitted to not having systems in place to manage this risk and punish such behaviour. This is despite the fact that this obligation has in fact been in place for many years via the EHRC – the Equality and Human Rights Commission.
There are a number of points here for future lawyers (both solicitors and barristers) to note.
First, the details of the Act and how they will apply to real-life contexts will be very important for lawyers in the specialist practice area of Employment Law, which is found across many types of law firms. These practitioners will need to advise on what employers should be doing to ensure they complete their obligations under the new rules. On the other side, they will perhaps be preparing to represent employees who want to bring a claim which utilises the new provisions being introduced.
There is also a different point to be made here about the behaviour of individual employees within law firms (as businesses themselves). Law has often been described as a heavily traditional industry with its fair share of ‘toxic workplaces’ (as many news stories from over the years attest to), so adjustments to legislation such as this may prompt the industry to think harder about its own efforts in coming years too.
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