Christmas parties under the new Worker Protection Act

With Christmas party season well and truly underway, will this year’s festive gathering result in high-risk stakes for employers?

The Worker Protection Act 2023

The introduction of new legislation last month has significantly raised the bar on employers duties to protect their employees. The Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force on 26th October 2024 and places a new anticipatory and proactive obligation on employers to consider the risks of sexual harassment in the workplace and take reasonable steps to prevent it from occurring, including at work related events such as Christmas parties.

This extends the current legal principle - that employers can be vicariously liable for the actions of their employees unless they can establish a defence - to another level. It means that unless organisations have already taken some action to proactively anticipate and assess the risks of sexual harassment in their workplace, regardless of whether there has been a claim, they can be liable. The Equalities and Human Rights Commission “EHRC” has been given specific powers under the new legislation to take enforcement action against employers which can include investigations and forcing them to take action under improvement plans. With widespread media interest on this subject, such action could cause significant reputational damage for employers. In addition, if a successful claim for sexual harassment is brought against an employer, employment tribunals can award the claimant an uplift of up to 25% on any compensation awarded.

It is important to note that the new duty to take reasonable steps to prevent sexual harassment also includes harassment by third parties, although currently this cannot be brought as a standalone claim in the employment tribunal and can only be enforced by EHRC. However, there are plans under the newly published Employment Rights Bill to extend the tribunal’s jurisdiction to cover third party harassment and also substantially increase the threshold of employer’s preventative obligations from “reasonable steps” to “all reasonable steps”. Whilst this may appear to be a relatively minor addition of just one little three-letter word, the practical impact on an employers duty under the new legislation will be significant.

So what “reasonable steps” are companies required to take? This not defined by the legislation and is causing confusion and uncertainty amongst employers. What is considered to be reasonable will vary by employer and depend on their size, sector and resources. In higher risk sectors such as leisure and hospitality, where employees interact regularly with third parties often at night and where alcohol is consumed, expectations will be higher and the duty more difficult to discharge.

Where do we start?

As an employer, the first step towards establishing that you have met your duty, is to undertake a detailed risk assessment which will identify the particular risks based on knowledge of your business, the sector within which it operates, your staff, your workplace culture and working environment. This can be undertaken by an external independent third party or in house by HR or managers, but it is important that if it is carried out in-house, that it does not simply become a tick box exercise. Internal risk assessments can sometimes overlook or underplay risk due to “group think” or the misconception that there are no issues because there have been no complaints of sexual harassment to date. Sexual harassment is not always motivated by sex, but by power and control, and power imbalances in the workplace can be one of the key factors that contribute to the lack of reporting. Individuals may fear that they will not be taken seriously or that they will affect their chances of promotion if they complain. As a result, many individuals who experience sexual harassment do not report their complaints because of fear of reprisal.

A risk assessment and report prepared by an independent third party can delve deeper into the organisation and more comprehensively and credibly assess the level of risk.

Once the risk assessment has been prepared, it will highlight any gaps in your processes policies and procedures and inform your action plan and priority steps. These can include training for managers and staff, development and amendment of policies, engagement with employee resource groups and monitoring of complaints and leaver data to look for obvious patterns.

Christmas party considerations?

Work Christmas parties are an extension of the workplace, and the new duty will equally apply to these events.

• If you are holding your Christmas party at an external venue, consideration should be given to the level of interaction staff will have with third parties. Will employees interact with waiting staff and bar staff? What risks does this pose, and what steps can be taken to mitigate those risks?
• Excessive consumption of alcohol may be expected and even encouraged at a Christmas party where employees are rewarded for their hard work throughout the year, but this can lead to lowering of inhibitions and lapses in good judgement which can cost employers dearly. Are you offering a free bar? If so, what steps should you take to remind employees of their obligations and ensure managers are leading by example and maintaining and upholding company standards? There is clearly a balance to be drawn between setting expectations and dampening festive spirits but highlighting the rationale behind the message before the event in transparent communications is key.
• Consider previous events. Are there any patterns of behaviour that are concerning?
• Do staff know what to do if they witness or experience sexual harassment and to whom they should report it?
• Are managers trained on what constitutes sexual harassment, able to look out for the signs of inappropriate behaviour, and are aware of their responsibilities to intervene? Do they know what to do if they receive a complaint?

Opportunity to promote a positive culture

Whilst the penalties and enforcement powers introduced by the new law are designed to encourage compliance, it is also important to remember that the primary driver for this legislation is the fact that sexual harassment is still prevalent in the workplace and often goes unreported.

It also provides an opportunity for employers to continue to build on positive workplace cultures of psychological safety where there is a zero tolerance approach to sexual harassment and individuals are empowered and encouraged to “speak up” and report any complaints.

How can our employment solicitors help?

We are currently supporting businesses with their obligations under the new legislation. As employment lawyers, we are highly specialised in analysing and identifying risks and have a wide knowledge of the particular risks in a range of industry sectors. We can provide a bespoke risk assessment report and set of recommendations which will assist in discharging your obligations under the new legislation.

If you would like some advice, please contact us on [email protected].