Creating A Safe Workplace: How Fashion Retailers Can Comply With The Duty to Prevent Sexual Harassment Under the Worker Protection Act 2023

By Jennifer Jenkins, Senior Associate at Browne Jacobson

The allegations which have surfaced in recent months from former employees of Harrods and Abercrombie & Fitch shed light on the dark undercurrents of workplace sexual harassment in the fashion industry. These revelations have coincided with the introduction of the Worker Protection (Amendment of Equality Act 2010) Act 2023, which introduces a new legal duty on employers to take reasonable steps to protect staff from sexual harassment. This duty, which came into force on 26 October 2024, represents a significant strengthening of the protections for workers, but what does it mean in practice for employers in the fashion industry, and what proactive steps can be taken in a retail environment to protect staff from sexual harassment? 

Understanding the new duty

The new duty is an anticipatory duty. This means that employers must take reasonable steps to prevent incidents of sexual harassment from occurring. What qualifies as reasonable steps will vary between employers and will depend on the employer’s size, the sector it operates in and its resources. In an industry which should be on high alert for incidents of sexual harassment in light of recent events, it follows that there could be a higher level of expectation on fashion retailers in terms of the steps that should be taken. 

Crucially, the duty is wider than just taking steps to prevent workers harassing each other and extends to harassment by third parties, including customers. In a retail environment, where workers are constantly engaged in one-on-one customer interactions, this is likely to be a particularly tricky element of the new duty to get right.   

Practical steps for compliance

1. Policies: Revise current policies to align with the new legislation. This includes clear definitions of unacceptable behaviours and robust procedures for handling complaints. Regular training sessions should be conducted for employees and managers. 
2. Safe Reporting Channels: It’s imperative that employees feel safe to report sexual harassment. Retailers should establish confidential channels for complaints. A trained team should handle these reports ensuring timely and appropriate actions are taken.
3. Regular Audits and Feedback: Implementing regular audits of workplace environments can help identify issues before they escalate. Create feedback channels for employees to safely voice concerns or suggest improvements. 

Consequences of non-compliance

An employee who believes they have been sexually harassed at work can bring a claim to an Employment Tribunal, which can order an employer to pay compensation to the worker (the amount of which is uncapped). Compensation can be increased by up to 25% if the employer has not complied with the preventative duty. 

The EHRC also has power to bring enforcement action against employers if the preventative duty is breached, including issuing a non-compliance order which can be enforced by the courts. 

In addition to the financial implications, the reputational damage a brand could suffer as a result of failing to protect staff, cannot be overstated. The recent coverage of endemic and seemingly unchallenged behaviours in the fashion industry is testament to this. 

Safeguarding employee wellbeing

Whilst the duty introduced under the new legislation applies solely to preventing sexual harassment, employers have an overarching duty of care to their employees which means they are legally obligated to create a work environment that is physically and psychologically safe for workers. This includes addressing factors like undue stress, bullying, and harassment of all kinds. To protect employees’ mental health, employers should consider regular mental health training, promoting a positive work life balance and taking steps to foster a supportive culture.

Conclusion

The fashion retail industry is the latest sector to find itself at the centre of serious allegations of sexual harassment and unsafe working environments. The level of scrutiny this brings, combined with the introduction of the new duty to proactively prevent sexual harassment, means employers must take steps to address these issues or face substantial financial and reputational harm. By revamping policies, educating staff, and fostering a culture of respect, fashion brands and retailers can comply with new laws and also protect and empower their employees, creating harassment-free workplaces which are essential for the sustainability and ethical integrity of the fashion industry.