Legal spotlight - December 2024

EMPLOYERS WILL be required to take steps to improve protections against violence and harassment, especially for women and girls, as part of their obligations to ensure workplace health, safety and wellbeing if a Private Member’s Bill currently before the House of Commons becomes law.

The Health and Safety at Work etc Act 1974 (Amendment) Bill (the Bill), introduced by Plaid Cymru MP Liz Saville Roberts, aims to amend the Health and Safety at Work etc Act 1974 (HSWA) to include more specific measures against violence and harassment in the workplace.

The Bill seeks to place a legal requirement on employers to take proactive steps to prevent violence and harassment. This includes implementing comprehensive policies and training programmes designed to create a safer and more inclusive work environment. The proposed amendments also mandate the Health and Safety Executive (HSE) to develop and publish a detailed Health and Safety Framework specifically addressing workplace violence and harassment, including gender based violence.

The Bill places emphasis on preventative measures. For example, employers would be required to conduct regular risk assessment and establish clear reporting mechanisms for incidents of violence and harassment. This proactive approach is intended to not only address incidents when they occur but also to create a workplace culture that discourages such behaviour from happening in the first place.

The Bill has attracted significant attention and support from various advocacy groups and organisations dedicated to workplace safety and gender equality, but without government support is unlikely to progress further. However, as with many such bills, the aim is not necessarily to make new law but to raise awareness of issues. In this case, the fact that the Bill is unlikely to become law does not detract from the fact that it reveals the increasing support for better protections from such incidents. 

There remains an argument that the HSWA is not the right platform to tackle such specific matters. One of the reasons the HSWA remains relevant 50 years after it came into force is its focus on the general responsibilities imposed on an employer to ensure the health, safety and wellbeing of its workers and others affected by their activities, insofar as reasonably practicable. With its roots in the belief that as the person most likely to create workplace health, safety or wellbeing risk, the employer is best placed to address it, the HSWA’s focus on these underlying obligations has meant that it remains flexible and able to provide the underpinning of the radical changes already seen in the last 50 years, and which are likely to be met in the future. 

Specific issues requiring additional parliamentary intervention have been provided for in other legislation or regulations. Some additional obligations are already in place. From 26 October 2024, businesses and employers in the UK are required to take reasonable steps to prevent their employees from experiencing workplace sexual harassment, including worker-to-worker and by third parties like customers and clients. This new mandatory duty has been imposed on employers of all sizes and across all sectors by the Worker Protection (Amendment of Equality Act 2010) Act 2023. 

This new duty requires employers to anticipate risk and take proactive steps to prevent harassment from happening. This legislation is intended to sit alongside all the things that employers are already doing to tackle workplace sexual harassment, but to change that mindset so that it is really about prevention rather than punishment. The use of risk assessments, similar to those used in workplace health and safety, will be key.

Failing to comply with the new duty will lead to enforcement action by the EHRC as well as financial penalties, as employment tribunals will be given the power to apply an uplift of up to 25% on tribunal awards where the duty to prevent harassment has not been complied with.

The change in legislation also gives the EHRC power to take enforcement action where there is evidence of organisations failing to take reasonable steps to prevent sexual harassment. Enforcement by the EHRC can be taken even before an incident of sexual harassment arises. 

The new duty is intended to drive organisational cultural change and place greater accountability on employers. Amongst other things, senior leadership buy in will be crucial, as will proper and regularly reviewed assessment of risk, with implementation of suitable and sufficient mitigations, as well effective training so that individuals understand the purpose and intended impact of the new duty.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com