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Sexual harassment within the workplace has been rightly unlawful for some time and therefore, employers should already have some policies and procedures in place to handle it should it occur.

Previously, employers were held accountable after an incident had occurred. However, with effect from 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a new duty to prevent sexual harassment within the workplace.

This legal preventative duty confirms that employers must take reasonable steps to prevent sexual harassment of their employees in the workplace. This duty can extend to work-related events such as business social events.

The duty only applies to sexual harassment, not harassment on other protected characteristics such as age, race, religion or sexual orientation.

Sexual harassment is defined as unwanted behaviour of a sexual nature that either violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for someone.

What are ‘reasonable steps’?

There is no definitive definition of what is considered ‘reasonable’. What is reasonable for one employer, such as a large company, may not be reasonable for a small business. The size and resources of the organisation will impact what steps an employer can take.

What is apparent is that this new preventive duty applies to all employers regardless of size. Employers cannot wait until there is an incident of sexual harassment to take action. Consequently, they must anticipate when situations of sexual harassment may arise and have measures in place to prevent such incidents from occurring.

Failure to have measures in place can put employers at risk of claims. Employers can still be held vicariously liable for acts of harassment by their employees if they occurred during their employment. However, employers can defend such claims if they can show they have taken reasonable steps to prevent the harassment.

Third-party harassment

Sexual harassment by third parties is not currently covered by the legislation. However, the new Labour Government has indicated within the Employment Rights Bill that the obligation will extend to employers to prevent sexual harassment by third parties. The Bill also expands the obligation on employers to take “all reasonable steps” to prevent sexual harassment within the workplace. These additional obligations set out in the Bill will demand a greater burden on employers.

Whilst not in current legislation, it is noted that the Equality and Human Rights Commission (EHRC)’s guidance does place an obligation on employers to take reasonable steps to prevent sexual harassment of workers by third parties, which includes customers, clients, visitors, and suppliers.

It is apparent from the EHRC’s guidance that there is an expectation that employers will take third-party harassment as seriously as internal incidents.  Consequently, we would recommend that employers take third party harassment as seriously as any other form of sexual harassment in the workplace and put in place measures now to keep staff safe from harassment.

The Consequences

If an employer breaches this new duty, then the tribunal will have the power to increase compensation by up to 25%. As there is no upper limit on damages for discrimination, this could significantly increase any award.

The EHRC also has the power to take enforcement action against employers where there is evidence that an employer is falling in their duty to take reasonable steps to prevent sexual harassment.

Actions that employers should take in preparation

All employers, if they haven’t already, should consider the following action points to help demonstrate that they have taken reasonable steps to prevent sexual harassment.

Policies and procedures

Employers should ensure their policies and procedures regarding bullying and harassment are up to date. These policies should clearly define sexual harassment, including examples, to enable staff to understand acts of harassment. Employers should also ensure that staff are aware of reporting lines to report incidents of harassment and reassure employees that complaints will be dealt with sensitively and in a timely manner.

Training and development

Employers should ensure that all staff understand and can identify incidents of sexual harassment with expectations set out regarding acceptable behaviour and reporting channels clearly publicised. Training should be provided during staff inductions and regularly throughout the year, reminding staff about harassment policies and procedures. Engaging with staff through internal training courses and regular reminders, such as on the employee intranet or notice boards, helps demonstrate that employers are complying with their preventative duty.

Management training

Business leaders and managers should lead by example and help foster a positive culture with values reinforcing dignity, respect and inclusion.

Managers and supervisors should receive the appropriate training to ensure they can identify and deal with sexual harassment incidents efficiently and sensitively.

Keeping records and monitoring

Employers should keep records of all steps taken when incidents occur including any updates to risk assessments and monitor progress made. Taking such actions will help demonstrate that the employer has taken reasonable steps to prevent sexual harassment.

Risk assessments

Employers should regularly undertake and review risk assessments periodically to ensure any potential risks are highlighted. Information to help complete such assessments includes reviewing any previous employee complaints, action plans and exit interviews.

Dealing with complaints

Employers should act swiftly when dealing with complaints of harassment and investigate the matter sensitively and in accordance with internal policies and timescales.

Where harassment can amount to a criminal offence, employers should discuss this with the individual concerned about whether they want to report it to the police.

Third-party harassment measures

Where employers interact with third parties such as clients, customers, visitors, and suppliers, they should ensure they also take preventative action to avert harassment. Such measures can include having clear and visible notices on business premises for both employees and third parties reminding parties of acceptable behaviour and confirming that any kind of harassment is not tolerated.

Contact Us

If you’d like to speak to one of our employment law specialists about the upcoming changes, or any other questions and concerns you have, you can fill out our online contact form or give us a call on 0330 111 3131.