Worker Protection Act – is the Equality Act 2010 changing?

The Worker Protection Act, also known as the Worker Protection (Amendment of Equality Act 2010) Act 2023, is an update to the Equality Act – with a particular focus on employee sexual harassment.

This new legislation comes into effect on 26 October 2024.

Keep reading to learn more about this recent update and how it could affect your business – as well as a refresher on the Equality Act, including a breakdown of the nine protected characteristics.

What is sexual harassment?

The Equality Act protects employees from sexual harassment in the workplace. This can include:

• sexual assault or rape
• making sexual remarks (including about a person’s appearance or clothing)
• telling sexual jokes
• unwanted touching
• asking questions about a person’s sex life
• making sexual comments – particularly in regards to a person’s gender or sexual orientation
• sharing sexual content

You can read more about the Worker Protection Act on the government website.

How to comply with the Workers Protection Act

A recent survey from Culture Shift revealed that 61 per cent of those surveyed don’t feel equipped to handle sexual harassment in the workplace. So what steps can you take to prepare for the Workers Protection Act?

Your first step should be outlining your policies and procedures in regards to harassment. Our guides on how to write a disciplinary policy  and grievance policy could be a good place to start. This can include how to make complaints, as well as how to investigate and handle them.

You can also introduce mandatory training to ensure everyone knows how to recognise and prevent sexual harassment in the workplace.

Failing to comply with the Workers Protection Act means that the Equality and Human Rights Commission (EHRC) may take action against you, which can include fines. And if a claim is made against your business, employment tribunals can now increase compensation by up to 25 per cent if they find your company has failed its duty of protection.

Equality Act 2010 summary

The Equality Act 2010 is an anti-discrimination law that protects people from discrimination, harassment, and victimisation in the workplace and wider society.

It presents nine protected characteristics, of which by law, you can’t treat someone unfavourably because of. The Equality Act 2010 defines different forms of discrimination across these categories:

• direct discrimination
• discrimination by association
• discrimination by perception
• indirect discrimination
• harassment
• harassment by a third party
• victimisation

Proven cases of discrimination against any of these protected groups can result in a tribunal or court case.

There are times when you can discriminate against these characteristics, but there needs to be a legitimate reason. For example, if you run a run a security business, you might require a certain level of fitness for an employee that an older person might not meet. Their age then becomes a legitimate reason to not hire them.

As part of the Equality Act 2010, disability and gender reassignment were given new definitions. Disability is defined as a person with a “physical or mental impairment” and that the impairment “has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.”

If you’re aware that an employee has a disability, it’s illegal for you to treat them unfavourably because of something that’s connected to their disability.

Gender reassignment was also redefined. In the past, people needed to be under medical supervision to be protected from discrimination – but the Equality Act 2010 removes this requirement.

A person will receive protection if they decide to live as another gender, regardless of whether or not they seek a medical procedure.

Discrimination in the workplace

Forms of discrimination are categorised in the Equality Act to remove any grey areas. It’s essential for business owners to understand the different types of discrimination so they can spot if it’s happening in their workplace.

Direct discrimination

This is when a person is treated unfairly because of a protected characteristic. For example, if you didn’t hire a woman for a position as your head chef because you believe a man would be better suited to a leadership role – this is direct discrimination.

But direct discrimination is also divided into subcategories:

• discrimination by association – this is when someone is treated unfavourably because of their connection to a person with a protected characteristic
• discrimination by perception – when a person is discriminated against for a ‘perceived’ protected characteristic, which they don’t actually have. For example, if you don’t give someone the same opportunities in your team because you think they’re older than they are – that is discrimination by perception

Indirect discrimination

This is when a rule is the same for everyone, but it puts somebody with a protected characteristic at a disadvantage.

It can be rules around informal things like toilets and dress codes, or more formal processes like recruitment, working hours, or ways of working.

Harassment

Harassment is when someone is the subject of unwanted behaviour from another person or group. For something to be considered harassment, it has to:

• create a hostile, degrading, intimidating, humiliating, or offensive environment for someone
• violate someone’s dignity

And it’s still considered harassment if the unwanted behaviour:

• has one of these effects even if it wasn’t the intention
• doesn’t have one of these effects on someone but it was intended to

With the introduction of the Worker Protection Act, it’s more important than ever to understand what constitutes harassment and how to prevent it.

Victimisation

Victimisation is when someone is treated unfairly because they’re linked to a discrimination claim. Labelling an employee as a troublemaker for making a discrimination claim would be an example of victimisation. But someone can also be victimised for:

• gathering information that could lead to a complaint
• being a witness in a complaint
• supporting someone else’s complaint

Discrimination as a business owner

It’s important to understand that discrimination in the workplace isn’t just about employees. Whether you’re a business owner, or a solo freelancer – you can experience discrimination.

It’s important to report any instances of discrimination but it can be difficult to know where to start. Acas and Citizens Advice have helplines that can support you with your claim.

For our Empowering Women In Business campaign, four female founders discussed their challenges with inequality and discrimination as business owners.

What else do employers need to know?

There are other key features in the Equality Act that are important for business owners to understand:

• dual discrimination – employees can now bring a claim relating to two of the protected characteristics
• pre-employment health checks – these are banned unless they’re deemed to be necessary for the role. It’s common for people in driving roles to be required to do an eyesight test for example
• pay secrecy – employment contracts can’t attempt to prevent employees discussing whether they’re being discriminated against in terms of pay because of a protected characteristic
• positive action – employers now have more power to choose a candidate from a group that’s under-represented in their organisation, when they have a choice between two equally qualified candidates
• more tribunal powers – employment tribunals now have expanded powers to make general recommendations, with a view to preventing discrimination in the future

Is there anything else you’d like to know about the Equality Act 2010? Let us know in the comments below.

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