Sexual harassment and the change in law in practice

Sexual harassment in the workplace continues to be a pressing issue, and a driver of ongoing legal reform to ensure sufficient safeguards to enable employees to work in environments free from harassment and that clarify the responsibilities of employers. 

As part of a broader movement, in part motivated by #metoo, changes made and forthcoming will pave the way to greater workplace equality and safety, where victims are adequately protected and employers are held accountable. 

The primary piece of legislation governing sexual harassment in the UK is the Equality Act 2010, which prohibits discrimination on the grounds of sex, including sexual harassment. While the core provisions of this Act remain largely unchanged, recent case law and proposed amendments have expanded the interpretation of harassment, including the necessary addition of harassment in the context of remote and hybrid work settings.

The change that has taken place

The law relating to sexual harassment was extended on 26 October 2024, when the Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force. As the name suggests, the intention behind the change was to give added protection to workers. 

What is ‘harassment’? The law defines harassment as unwanted conduct relating to a ‘protected characteristic’, which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.   

Here is a reminder of the protected characteristics: age, disability, gender reassignment, race, religion or belief, sex or sexual orientation. Whilst pregnancy and maternity and marriage and civil partnership are not expressly protected under the harassment provisions, harassing someone because of pregnancy or maternity could constitute harassment related to sex. 

What is unwanted conduct?

Unwanted conduct covers a wide range of behaviours, which can often come as a surprise. The scope is increasingly becoming broadened to include what would be deemed more subtle actions, such as indirect verbal comments and non-verbal gestures.

Flexible ways of working, including remote working, has also thrown up risk-based discussions. The increase in video calls, emails and other forms of online communication has led to a wider consideration of harassment to include these contexts.

Conduct can be unwanted because it would very obviously violate a person’s dignity, but it is often covert and more nuanced. For the purposes of the law, the test is a subjective one where unwanted is ‘unwanted by the recipient’. It is irrelevant that the ‘perpetrator’ may have intended no harm or upset.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 places obligations on an employer to protect employees from sexual harassment by taking proactive measures defined as ‘reasonable steps’ to identify risks of sexual harassment and prevent it before it happens. The previous position was less protective and more reactive in nature and provided a framework for redress.

Going that extra mile

The Employment Rights Bill expected to come into effect in 2026 will extend an employers’ duty further and require ‘all reasonable steps’ to prevent sexual harassment. The addition of the word ‘all’ requires an employer to go much further than simply having to take ‘reasonable steps’. It’s essentially going the extra mile, because it opens the door for argument that there was a step the employer could have taken but in fact did not, which could in turn lead to liability for a breach of the preventative duty. 

The Equality and Human Rights Commission (EHRC) guidance includes a useful section on this extended ‘preventative duty’. It suggests that employers will need to anticipate scenarios when workers may be subjected to sexual harassment in the course of employment and take proactive steps to prevent it, akin to looking into a crystal ball. Further, due to the preventative element of the duty, if sexual harassment has taken place, the employer is under a duty to take action to stop it from happening again.

Employers finding their way

The reality is that what will be expected will depend on the size of the organisation and resources available to it and no doubt evolving case law on the issue.

As a starting point, businesses are advised to direct their mind to the following practical steps that can be taken in preparation for the legislative change, which will serve to minimise exposure and risk to claims:

Training, training and more training

Tailored and targeted training to ensure: (a) that all workers know what sexual harassment is, and what is and is not appropriate behaviour in the workplace and what to do if they experience or witness sexual harassment in the workplace; (b) that managers and senior leadership recognise inappropriate behaviour; and (c) ensure that workers feel able to raise concerns and that appropriate steps are taken to deal with complaints expeditiously and consistently to prevent future occurrences.

Risk assessments

Companies should assess the risk of sexual harassment, by considering (non-exhaustive list): power imbalances; diversity (or lack thereof); job insecurity for a particular group or role; alcohol-induced incidents; lone working or working at night; work travel; and customer-facing duties.

Clear accessible complaints procedures

Ensuring all workers know about policies and complaints procedures and feel safe to speak up about inappropriate behaviour can be achieved with: clear avenues to raise concerns; providing support and ensuring protection from reprisals; support and resources being clearly signposted (internal and external); access/sign posting to an anonymous and/or confidential phone line (internal/external); providing more than one channel for reporting; dealing with complaints/disclosures promptly and fairly in accordance policies and procedures; ensuring the complainant understands the possible outcome; and identifying possible wider/systemic issues and addressing them as part of ongoing preventative steps.

Updated contracts, policies and procedures.

Ensuring that policies and procedures are followed and enforced is key to addressing sexual harassment in the workplace. A policy that is there for the sake of it is worthless. It is recommended that policies have:

• clear definitions of bullying and harassment, covering the definition of the different types of harassment (including sexual harassment) for the purposes of the Equality Act, the protected characteristics, and victimisation;
• a statement that this behaviour will not be tolerated;
• clear examples of behaviour that may constitute bullying and different types of harassment, which are relevant to the organisation and reflect a diverse range of workers;
• clarity that the policy also applies to work-related situations outside normal hours or off-site, e.g., after-work drinks and conduct on social media;
• an explanation of steps that will be taken to prevent and deal with third-party harassment;
• a statement that workers are encouraged to report inappropriate behaviour and commitment to a reprisal-free complaints procedure;
• clear procedures for workers to report harassment and bullying and the ability to report concerns to a variety of individuals;
• encouragement to report bullying and harassment;
• consideration of which workers are covered by the policy, for example, whether casual, agency, and freelance staff are covered. Given the scope of the applicable legislation, it is normally advisable to include such categories;
• providing an opportunity for staff to follow either an informal or formal resolution process;
• provisions to suspend the alleged harasser/bully during the investigation process or, if this is not practicable, to permit the complainant to remain on a paid leave of absence during this period;
• confirmation that workers may be disciplined and ultimately dismissed for violating their coworker’s dignity at work and that they may also be individually liable to pay compensation; and
• specification of the disciplinary sanctions available in cases of harassment and/or bullying, up to and including summary dismissal for gross misconduct.

Additional measures could include: setting an example with senior leadership delivering anti-harassment messaging or being appointed training guardians; maintaining a database of sexual harassment complaints to enable focus on areas of risk; staff surveys as a tool implement prevention steps; and clear communication with staff.

Liability for third-party harassment

The proposed reforms include liability for third-party harassment, which exposes employers to risk of claims, even where the harassment is caused by third parties (e.g., customers, contractors or vendors). There is a requirement placed on firms to create safer working environments, not only within the business, but also when dealing with and exposing their staff to external individuals who may engage in inappropriate conduct.

The Employment Rights Bill expressly states that employers will be liable where there is a workplace connection and whilst this is likely to come into effect in 2026, businesses are advised to manage the risk of third-party harassment as if this was already ‘good law’. The EHRC guidance makes it clear that the preventative duty is intended to apply to harassment by third parties, such as customers and clients.   

Managing the risk of third-party harassment is akin to walking a tightrope, especially in some high-risk industry sectors, such as retail and hospitality, due to the customer-facing nature of the same.  

Win–win

Whilst we cannot predict the future, it is expected that the EHRC and the Employment Tribunal will take a stringent approach when it comes to making a determination on third-party sexual harassment. The obvious benefit of employers being ahead of any legislative changes and implementing preventative measures, is that with a safe working environment there are likely to be fewer complaints and, consequently, a reduced risk of legal liability.

Round-up

This new law is not a free-standing claim and must be attached to a claim for sexual harassment in the Employment Tribunal. Any compensation awarded on a successful claim can be uplifted by up to 25% due to a failure to follow procedures. Given that compensation for discrimination is potentially unlimited, this could be significant.

The duty can also be enforced by the EHRC, using its existing powers of enforcement, which include:

• investigations;
• notices to take specific steps;
• binding agreements with the EHRC; and
• at the extreme end – injunctions to prevent certain behaviours.

Involvement of the EHRC by complainants can often lead to enhanced media scrutiny, exposing a business to significant reputational damage, which is also a factor for consideration. 

Employers beware

Employers are advised to take proactive steps to update their policies and practices to comply with the legislative updates and foster a safer workplace as they face heightened responsibilities in preventing and responding to sexual harassment including, anti-harassment policies, regular training and clear reporting procedures. 

Failing to comply with sexual harassment laws can lead to significant legal, financial and reputational consequences. Employers who do not take adequate steps to prevent and address harassment may face legal liability, damage to their reputation and detriment to employee morale and productivity.