New legislation on preventing sexual harassment in the workplace

From 26 October 2024, new legislation comes into effect in England, Scotland, and Wales, requiring employers to take reasonable steps to prevent sexual harassment in the workplace.

What is the new preventative duty and how does this differ from previously?

Prior to 26 October 2024, employers in the UK may be found liable for sexual harassment carried out by employees. Employers can defend this on the basis that they took all reasonable steps to prevent the sexual harassment from occurring.

How the preventative duty differs is that employers must take reasonable steps under an amendment to the Equality Act 2010 to prevent sexual harassment of employees in the course of their employment from occurring in the first place. This duty is anticipatory, meaning employers should not wait for an incident to occur before taking action.

Who does this apply to?

The duty applies to sexual harassment between employees or between the employer and employees. It does not cover harassment based on sex or other protected characteristics.

Sexual harassment by third parties

The Equality and Human Rights Commission (EHRC) guidance to the Act includes a duty for employers to take reasonable steps to prevent sexual harassment of workers by third parties including by clients, customers, contractors and service users. However, there is no legal remedy for the individual under the Act should the employer fail to do so.

Under the Act, only the EHRC can take enforcement action against standalone breaches of the duty if an employer fails to take reasonable steps to prevent third-party sexual harassment of employees. In light of this, although not a legal requirement, when entering into third-party contracts, such as with suppliers or other business to business contracts, employers could consider including contractual clauses regarding the requirement for the business to have their own anti-harassment policies in place and setting out unacceptable standards of behaviour.

What is sexual harassment?

Sexual harassment is defined under the new legal duty as conduct of a sexual nature that violates an employee's dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment. This includes unwelcome sexual advances, requests for sexual favours, and other verbal, non-verbal, or physical conduct of a sexual nature.

What are employers expected to do?

Employers cannot of course entirely prevent sexual harassment from ever occurring in the workplace. Employers are expected to take appropriate measures to prevent sexual harassment as far as this is reasonable, such as having a clear policy, providing mandatory training, encouraging reporting, conducting regular (anonymous) staff surveys, and monitoring complaints and formal grievances to ensure that they are properly investigated and resolved (by carrying out a reasonable investigation and avoiding jumping to conclusions).

Following an investigation and outcome, employers should ensure that the perpetrators are dealt with appropriately (such as through the employer’s disciplinary procedure). This will help employers to identify particular risk areas and ensure effective measures are put in place to minimise those risks.

What are reasonable steps will vary from employer to employer and will depend on factors such as (but not limited to): the risk of sexual harassment occurring, the employer’s size (larger employers may be expected to do more than smaller employers), the sector it operates in, the working environment and its resources.

What actions can be taken against employers who don’t comply?

The Equality and Human Rights Commission (EHRC) can take enforcement action against employers who fail to comply with the preventative duty. Additionally, if an employee succeeds in a sexual harassment claim, an Employment Tribunal can increase compensation by up to 25% if the employer has failed to put in place reasonable measures in accordance with the preventative duty. However, an individual cannot bring a claim for a breach of the preventative duty alone.

Fact sheet guidance on sexual harassment and a template sexual harassment policy is available on the Markel Legal and Business Hub.