Worker Protection Act: Are employers getting the right advice?

With employers preparing for the upcoming Worker Protection Act, organisations are seeking guidance on how to comply with the requirement to take reasonable steps to prevent sexual harassment. This is a moment for law firms to consider whether the advice they are giving is appropriate, and also consider the reputational risk associated with how well they comply with the new requirement themselves.

Any guidance on this amendment of the Equality Act needs to be based on a firm understanding of what ‘prevention’ means. Historically most workplace initiatives on sexual harassment have focused on policies, reporting processes and awareness raising campaigns. Whilst all of these have a role to play in how an organisation responds to workplace sexual harassment, they cannot be considered meaningful ways to prevent sexual harassment from happening in the first place.

Sexual harassment is about relationships, power, difference and consent. An impactful prevention campaign needs to be based on a firm understanding of why sexual harassment happens, what facilitates it, why people don’t step in to prevent it, and what kinds of changes are likely to lead to a lasting positive impact. To comply with the Act it’s not just a case of asking ‘what are we doing?’ but also ‘why would we expect that to prevent sexual harassment from happening in the first place?’.

Sexual harassment is a cultural phenomenon that touches every area of our society. Effective prevention efforts need to focus on workplace culture, empowering everyone in an organisation to have the right knowledge and skills to step in when they witness potential sexual harassment. People need to know how to talk to their colleagues about their behaviour, they need to understand what consent is, and they need to reflect on their own ability to give and receive feedback. Impactful programmes of work will cover the range of different behaviours that can be considered sexual harassment – from isolated moments of inappropriate language, to the sustained manipulation and physical harassment of colleagues. They also need to cover the range of different types of harassers, from people who do not intend to cause harm but are relating to others in ways that are out of date and inappropriate, to individuals who fully intend to cause harm and hope to manipulate their workplace culture so that they can continue to get away with it. All of this needs to be done in a way that encourages people to always do something if they witness potential sexual harassment, but avoids creating a workplace culture where accusations are cast without care, nuance or compassion. It is a balancing act between being cautious and robust – a balancing act that is perfectly possible, and very powerful when it is achieved.

As well as helping clients comply with the new requirements, law firms also need to consider how they are preventing sexual harassment within their own workplace. The legal profession is far from exempt from this type of harassment as is reflected by the need for detailed guidance on sexual misconduct by the Solicitors Regulation Authority and the emergence of groups such as Behind the Gown. The legal profession has a long way to go before it can confidently say that people working in the sector can expect to be working in an industry that is free from sexual harassment. As well the desire to create safe workplace environments where people can work with dignity, law firms have the extra pressure of the reputational risk of being seen to fail on an issue that they wish to represent their clients on.

Whilst the Worker Protection Act will present challenges to all organisations who wish to ensure they can fully meet the new requirements, it is also a timely invitation to step towards a future where more of our workplaces are free from sexual harassment.

Dr Nina Burrowes is a psychologist and the founder of The Consent Collective