Worker Protection (Amendment of Equality Act 2010) Act 2023 — inserting EA2010 s.40A (preventative duty on sexual harassment)

In brief

The Worker Protection Act 2023 amends the Equality Act 2010 to introduce a new preventative duty on employers. Under EA2010 s.40A (inserted by WPA 2023), employers must take reasonable steps to prevent sexual harassment of their employees in the course of employment. The Equality and Human Rights Commission can enforce the duty under its existing statutory powers, and the Employment Tribunal may increase compensation in a successful harassment claim by up to 25 per cent where the employer has breached the duty. The duty applies only to sexual harassment (EA2010 s.26(2)); it does not extend to harassment related to other protected characteristics, though the Government has consulted on further extensions.

Key provisions

• EA2010 s.40A(1) — Positive duty to take reasonable steps to prevent sexual harassment: An employer must take reasonable steps to prevent sexual harassment of employees in the course of their employment.
• EA2010 s.124A (uplift mechanism) — Tribunal can uplift compensation by up to 25% where duty is breached: Where a tribunal finds that a contravention of s.26(2) (sexual harassment) has occurred and the employer has failed to comply with the s.40A duty, the tribunal may order an uplift of up to 25% on the compensation awarded.
• Scope — sexual harassment only — Duty limited to sexual harassment; does not extend to other protected characteristics: The s.40A duty is limited to sexual harassment under EA2010 s.26(2). Harassment related to other protected characteristics (sex, gender reassignment, race, religion, etc.) is not directly covered by the preventative duty, though other equality duties remain relevant.

When relevant

Any assessment of an employer's preventative obligations around sexual harassment. Relevant to the stacked-claim analysis where a trans worker's harassment claim under s.26(1) EA2010 sits alongside a sexual-harassment dimension covered by the s.40A duty. Also relevant for Board Briefing risk quantification — the 25% uplift meaningfully changes the downside of a finding.