What do the new employer duties to prevent sexual harassment mean for your business?

The #MeToo movement is one of the many pressures that have prompted tighter rules on sexual harassment in the workplace. The new Worker Protection Act places greater responsibility on employers, with businesses now required to take proactive steps to stop staff being subjected to sexual harassment, whether at work on or any work-related event. Employment lawyer, Kate Lawson, director of Element Law, outlines what these new responsibilities mean for business owners and managers.

Reports, claims and cases of workplace sexual harassment have been prominent in the media over the last seven to eight years since the Harvey Weinstein revelations.  The many high-profile cases, the #MeTooMovement, and resulting UK government inquiries, surveys and consultations, highlighted the extent of the issue in the workplace, the inadequacy of the existing legal protections, and the significant impact of workplace sexual harassment on the physical and mental health of those subjected to it.

Therefore on 26 October 2024, a new mandatory duty to prevent sexual harassment in the workplace took effect, as contained within the new Worker Protection (Amendment of Equality Act 2010) Act 2023.

Employers are therefore now under a positive duty to take proactive reasonable steps to prevent the sexual harassment of their workers.

1. What is sexual harassment?

Sexual harassment for the purposes of this legislation is unwanted conduct of a sexual nature.  Remember sexual harassment exists in many forms, and need not be along the lines of the allegations against the former owner of Harrods.  Sexual harassment can occur for example where colleagues are sharing sexual jokes, pictures or internet content on emails or WhatsApp groups, or are seen looking at such content in the office.  It can also occur outside of work at work-related events such as parties, drinks events, client events, client meetings, and away days.

2. What are “proactive reasonable steps” to prevent sexual harassment?

What is reasonable for your organisation will depend on factors such as:

1. Size and resources
2. Nature of the working environment
3. Nature of contact with third parties
4. Time, cost and disruption versus benefit
5. Previous concerns of sexual harassment

Having a separate Policy on Sexual Harassment, or clear coverage specifically of sexual harassment in a general Harassment Policy, is now vital, but is by no means enough.  It is important to shift from reactive measures to proactive prevention.

In essence, this is about ensuring your workplace has a zero-tolerance culture in relation to sexual harassment which is supported by identified steps taken by senior management and published to all employees, consultants, agents, clients and suppliers.

Fundamental steps an employer should take in relation to sexual harassment in the workplace include undertaking or compiling:

1. A Risk Assessment of risk factors specific to your business which may create situations when sexual harassment is at higher risk of occurring. For example, it may be considered there is higher risk on away days or at work parties or meetings with customers or clients or events where alcohol is involved. The risk assessment should identify:
   1. The risks present in your workplace
   2. The steps that would reduce those risks
   3. The steps it would be reasonable for your business, based on its specific facts and circumstances, to take
2. Undertaking Workforce Consultation on the matter, such as by way of an anonymous workplace survey and/or with newly set-up internal working groups or a standing employee representative or consultation committee.
3. An Action Plan of reasonable steps or preventative measures, based on the Risk Assessment and on consultation with the workforce. This action plan should include:
   1. An anti-harassment policy
   2. Firm-wide and management training
   3. Clear and safe reporting mechanisms for those who experience or witness sexual harassment
   4. Workplace champions
4. Regular Review of the risk assessment and preventative measures.
5. A Designated Lead in the business in relation to prevention of sexual harassment to oversee measures and strategy and ensure regular reviews.
6. Where can I find additional guidance to help my business comply with the new requirements?

The Equality and Human Rights Commission (EHRC) has published updated Technical Guidance on sexual harassment and harassment at work which includes a consideration of this duty.  This document is worth reading; it is 67 pages but is a fairly quick read as it presents many very helpful illustrative scenarios

In addition, the EHRC has published a helpful 8 Step Guide entitled Preventing sexual harassment at work; this brief document is certainly important for all business owners and HR practitioners to read.

The Fawcett Society has also published a helpful toolkit.

4. What steps can employees take if an employer fails to take such steps?

Employees can bring a claim for sexual harassment against both the employer, who is variously liable for the actions of their staff, and against the individual carrying out the alleged harassment. If they succeed, and the tribunal rules there has been a breach of this prevention of duty, the tribunal can apply a sanction in the form of increasing the compensation awarded by up to 25%.

Bear in mind there is no cap on the compensation that can be awarded in a sexual harassment case. The compensation can include awards for injury feelings of up to £58,700, as well as a potential additional award for personal injury, such as psychiatric illness caused by the harassment.  Therefore the 25% uplift can amount to a significant amount of money, depending on the facts and circumstances of the actual sexual harassment claim itself.

However, an employee cannot make a standalone claim in relation to their employer’s duty to  prevent sexual harassment. An employee must firstly succeed in their claim; if the tribunal then awards the uplift, sanction for breach of the duty to prevent sexual harassment is applied. There are many who consider the law has not gone far enough on this point.

5. Are there any other ways the duty to prevent sexual harassment can be enforced?

Perhaps more significantly here is the fact that the EHRC can now also take enforcement action against any employer in relation to the prevention duty, such as investigating any allegations and putting in place a legal agreement requiring the employer to take certain steps. This enforcement action will also attract media attention, as was the case with the EHRC intervention and legal agreement in place with the Welsh Rugby Union and McDonalds.  Bear in mind, any employee can also make a report of sexual harassment to the EHRC via their whistleblowing channels using an online form, email or by telephone.

6. What other changes do businesses need to be aware of?

The above reforms were introduced, as a private member bill, under the Conservative government.  The new Labour government intends to provide further safeguards within the Employment Rights Bill, which is currently on its long passage through parliament and expected to come into force later in 2026. These proposals include:

• Adding the word “all” such that the duty is to take not just reasonable steps but ALL reasonable steps
• A power for ministers to specify reasonable steps in legislation or guidance
• Confirmation that workplace sexual harassment disclosures enjoy the specific protections under whistleblowing legislation
• Duty on employers to also protect staff from third-party harassment, for example by customers or suppliers (and this is not limited to sexual harassment but to all forms of harassment)

It is important to ensure you are taking reasonable steps to prevent sexual harassment taking place in your business, and also to keep up-to-date with ongoing developments in this area.

MEET THE EXPERT

The director of Element Law, Kate Lawson is a specialist employment law and HR solicitor for businesses and employees across the country. She also provides bespoke HR Training and Mediation Services.