The Worker Protection Act: one strike and you’re out

We’re all familiar with the phrase “three strikes and you’re out”. Most know its sporting origins in baseball. Some may associate it with Bill Clinton’s 1994 legislation mandating life imprisonment for those committing three serious, violent, offences. It’s colloquially used in employment – often around lateness and attendance.

With the Worker Protection Act now 12 months’ old, we need to be clear about one thing. You don’t clock up three strikes with sexual harassment. One is all it takes. However, harassment often generates (at least) three unpleasant business outcomes.

Hunter v Lidl Great Britain Ltd

Take the case of Hunter v Lidl GB. Lidl was found vicariously liable for Ms Hunter’s sexual harassment by colleagues. Their gold standard policies and procedures simply weren’t followed.

Ms Hunter worked part-time during full-time education. It was her first experience of work. Within a short time, she was full-time and a shift manager.

Whilst still a young part-timer, she complained about sexual harassment. Her store manager told her to ‘take it as a compliment’. She later complained to another store manager about inappropriate comments and touching. He laughed and said he wasn’t surprised.

Further inappropriate dialogue took place and there was a catalogue of touching, hugging, slapping, and inappropriate comments.

Written and oral complaints were ignored or discounted as ‘compliments’ or ‘banter’. Lidl’s own policies and procedures were ignored.

• They were fined over £50,000.
• The Equality and Human Rights Commission intervened. Lidl reached a ‘Section 23 Agreement’ with them. Effectively, legally binding measures to avoid punitive action.
• The case attracted significant negative publicity, damaging Lidl’s reputation.

And breaching the agreement would risk further action by the EHRC (as happened recently to McDonalds – see below).

The bigger picture

This case is not isolated. Lidl joins other household names – IKEA, Sainsburys, McDonalds, to name but a few. Organisations you would expect to know better. That’s not to say small organisations are immune, and don’t get caught. They do.

In 2023, the Trades Union Congress surveyed over a thousand women.

• Three in five had experienced work-related harassment.
• It was two-thirds for women 25 to 34.
• Over half suffered three or more incidents.
• 70% were at work, others via telephone calls, text messages, emails, and social networking.

McDonalds

Back in 2023, the multi-national fast-food retailer, McDonalds, signed a binding section 23 agreement with the EHRC. This followed undercover investigations, revealing significant workplace harassment. Reportedly, and despite that agreement, 160 people subsequently identified ongoing harassment to the BBC. Apparently, 300 reported issues to the EHRC itself. Embarrassingly, a second agreement became necessary.

And law firm Leigh Day has instructions to pursue legal action on behalf of a significant number of current and former McDonalds staff. It appears up to 700 people have joined this claim.

12 months later

Last year we updated clients’ employee handbooks to reflect new proactive responsibilities. We said, very clearly, however good your bullying and harassment provisions on paper, they do not discharge the legislation’s proactive responsibilities. We identified clear actions to take.

For instance:

• Periodic risk assessments to identify reasonable measures to adopt.
• Include equality, diversity and inclusion; alongside bullying, harassment and sexual harassment, in induction programmes.
• Publicise, and reinforce regularly, how to report bullying, harassment or sexual harassment – whether experienced or observed.
• Use staff surveys, one to one meetings, exit interviews, return to work discussions etc. to pinpoint issues.
• Monitor infringements to learn lessons and identify necessary improvements.
• Refresh policies regularly and promote anti-bullying, harassment, and sexual harassment measures. 
• Provide familiarisation, training, and periodic retraining, for managers and staff.
• Ensure a zero-tolerance approach to workplace bullying, harassment, and sexual harassment is clear from your actions.

The direction of travel

The Employment Rights Bill, currently before Parliament, strengthens current legislation and introduces additional obligations.

Between April 2024 and March 2025 there’s been a significant uptick in employment tribunal claims, reportedly exceeding 30%. It’s now showing a further significant increase during 2025.

In fact, ACAS received 5,600 workplace harassment calls in the first six months of 2025 – that’s nearly 40% up from 2024. Harassment in the workplace is Googled over 7,000 times per month.

Act now

If you’ve already adopted measures such as those identified above, you can breathe again… for now.

If you haven’t, you are at considerable risk. Firstly, you’re not doing things your handbook says you are. Secondly, there’s a marked increase in legal challenges. Thirdly, the EHRC may well intervene – and not just with large organisations. And, fourthly, those with employment insurance policies may be uninsured if they haven’t adopted proactive measures.

Not only might your organisation be on the receiving end of very substantial financial penalties, but you may also be subject to unwanted and damaging media attention. In turn, this leads to reputational damage, and recruitment and retention issues.

In the last 12 months, Moorepay provided consultancy to over 100 clients to help them grapple with the new legislation. And we continue to offer support. Speak to your Account Manager or telephone the Policy and Consultancy Team on 0345 073 0240 (option 3), or email policy.team@moorepay.co.uk for assistance.