Sexual harassment at work: what employers need to know about their new duty

Employers have a new duty to take reasonable steps to prevent the sexual harassment of workers in the course of their employment. This new duty was incorporated into the Equality Act 2010 (EqA) by the Working Protection Act 2023 and applies from 26^th October 2024.

What is the new duty for employers?

This new duty sits alongside the existing obligations found in the EqA but does not in itself form an independent claim for employees to pursue in a tribunal, so the worker cannot bring a standalone claim if their employer fails to take reasonable steps to prevent sexual harassment. Instead, a worker can only bring this type of allegation under the new duty where an existing claim for sexual harassment has been upheld.

This is a preventative/proactive duty as opposed to a more reactive duty which we had previously. This means that employers should anticipate scenarios that could subject workers to sexual harassment in the workplace and take effective action to prevent it. Therefore, employers must create a culture where sexual harassment is understood to be unacceptable and should be proactive in their training, complaints procedures and confidentiality.

While this new law was being deliberated in the House of Lords, the original wording to take ‘all reasonable steps’ was reduced to ‘reasonable steps’. In reality, this means that if an employer can demonstrate that the actions that they took were reasonable (even if they could have done more or something different), then it is anticipated that the reasonable steps they did take will suffice. The use of ‘all’ was decided to place the employer under too high an obligation and was therefore removed.

What duty did employers previously have to prevent sexual harassment at work?

Under the Equality Act, workers are protected from acts of discrimination, harassment and victimisation. Before this new duty came into force, employers were protected against sexual harassment under the EqA and this applied to unwanted conduct of a sexual nature, no matter what the intention was. This new law imposes a mandatory legal duty on employers to proactively prevent sexual harassment in the workplace.

What counts as sexual harassment?

According to the EqA, employees are protected against sexual harassment, i.e. harassment of a sexual nature but it does not need to relate to sex or any other protected characteristic.

This type of harassment occurs where:

• The perpetrator engages in conduct of a sexual nature; and
• That conduct is unwanted by the victim; and
• The conduct has the purpose or effect of:
  • Violating the victim’s dignity; or
  • Creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim.

An employment tribunal will consider the perception of the victim and all other circumstances of the case to assess if the victim’s dignity has been violated or if an intimating, hostile, degrading, humiliating or offensive environment has been created.

Examples of sexual harassment at work include:

• Sexual comments or jokes.
• Displaying sexually graphic pictures, posters or photographs.
• Suggestive looks, staring or leering.
• Propositions or sexual advances.
• Making promises in return for sexual favours.
• Sexual gestures.
• Intrusive questions about a person’s private or sex life, or a person discussing their own sex life.
• Sexual posts or contact on social media.
• Spreading sexual rumours about a person.
• Sending sexually explicit emails or text messages.
• Unwelcome touching, hugging, massaging or kissing.

Who is protected from sexual harassment at work?

The law protects a wide range of people against sexual harassment at work, including:

• Employees and workers.
• Contractors and self-employed people who are hired to personally do the work.
• Job applicants.

Employers can be ‘vicariously liable’ for the acts and/or omissions of their workers, i.e. they will be held responsible for the actions of employees. Anyone who sexually harasses someone at work is also responsible for their actions. Such complaints and tribunal claims can be made against individuals as well as employers.

In addition to employers being held responsible for their workers and employees, the guidance makes clear that the employer’s duty to their staff also extends to the need to take steps to prevent sexual harassment by third parties which may include clients, customers and other visitors to the workplace.

What happens if an employer fails in their duty?

Compensation

If a tribunal finds that the preventative duty has been breached, it can order a compensation uplift of up to 25%.  The uplift can be applied to all compensation awarded to the worker under the EqA, not just to the compensation awarded for the sexual harassment itself. The amount must be reflective of the employer’s compliance with the preventative duty.

While the standard on employers is only for sexual harassment and not other protected characteristics, if someone has a claim which includes multiple forms of harassment (i.e. age, race, gender), the 25% uplift would be applied to the whole sum not just the part portioned for the sexual harassment.

Compensation for sexual harassment can be significant and can include compensation for both past and future loss of earnings, injury to feelings and sometimes personal injury.

Enforcement action from the European Convention on Human Rights

The European Convention on Human Rights (EHRC) has powers to take enforcement action against the employer and can carry out investigations, issue unlawful act notices and enter into a legally binding agreement with the employer to prevent future unlawful acts. The EHRC has published guidance which applies to England and Wales.

Creating a safe space: policies and best practices for employers

If you haven’t already updated your policies and procedures to reflect this new duty, you should consider the following:

• Educate workers about sexual harassment and what actions will amount to such conduct, e.g.:
  • Refer to the legislation and definitions.
  • Remind workers of any relevant policies and where to find them.
  • Create a zero-tolerance environment.
• Foster an inclusive culture in the workplace.

The ECHR has published an eight-step guide to preventing sexual harassment. Whilst this is a non-exhaustive list it sets out an effective approach to dealing with these issues in the workplace.

8 steps to preventing sexual harassment at work

1. Employers should be encouraged to develop an effective anti-harassment policy. This policy should be monitored and regularly reviewed.
2. Staff should be engaged with the policies and there should be an open-door policy. Acas recommends greater two-way communication between the directors/senior employees and staff. The outcomes of one-to-one meetings, exit interviews and surveys should be considered and action must be taken where it is needed.
3. Employers should assess and take steps to reduce risks in the workplace. This must be proactive. Risk assessments should be undertaken and factors (like power imbalance, diversity, the type of job, etc.) should be considered in assessing the risk of this kind of harassment.
4. Make sure employees know how to report sexual harassment. If employees are not aware of how to report harassment or who to report it to, incidents will often go unnoticed. Equally, people should feel safe to report incidents. For example, what systems are in place? Are they protecting identities (confidential)? Is everyone aware of what sexual harassment is?
5. Workers, including managers and all senior staff, should be trained on what sexual harassment is and what it looks like in the workplace. They should also have clear information about how to report it, the process that they will go through and how to receive and handle complaints of harassment.
6. It is important that all workers are able to handle complaints compassionately and effectively. Action should be taken immediately to try and resolve the complaint and confidentiality should be respected for all parties. There should be consideration of ways to reduce the risk (i.e. moving the alleged harasser into another team or site etc.), a need to ensure witnesses are protected and how to support any ongoing criminal investigations. Sometimes, employers can overuse and abuse non-disclosure agreements and gagging clauses but this must only be used if necessary and lawful and you cannot use a non-disclosure agreement to stop someone from reporting a crime to the Police.
7. Employers will also need to be aware of potential risks in dealing with harassment by third parties. This could include a customer, client, or supplier. The ECHR is clear that this should be treated with the same seriousness as if it were committed by an employee. Steps should be taken to reduce this risk.
8. Finally, are there effective methods of monitoring the practices put in place to prevent sexual harassment and the methods in place to report it? These should be evaluated and kept up to date.

Contact our employment lawyers in Bristol

If you need advice about how best to protect your workforce against sexual harassment, our employment solicitors can help. Our expert team can advise you on best practices, including updating policies and procedures, and the steps to take if an incident occurs.

Call us on 0117 325 2929 or fill out our online enquiry form.