The Worker Protection (Amendment of Equality Act) Act 2023 came into force on 26 October 2024, introducing a new duty on employers to take reasonable steps to prevent the sexual harassment of employees. Trainee solicitor Steve Pires, sat in our Employment team, reviews the existing law on sexual harassment, what the new duty entails and the consequences should employers fail to comply with the new legislation.

The Worker Protection (Amendment of Equality Act) Act 2023 (the “new Act”) requires employers to comply with a new duty to take “reasonable steps” to prevent sexual harassment of employees. The original bill was introduced following a government consultation on sexual harassment in the workplace in July 2021, which found support for a new duty to prevent harassment as they believed it would prompt employers to take positive action.

What is the law on sexual harassment in the workplace?

Sexual harassment is already prohibited in the workplace under the Equality Act 2010. Sexual harassment occurs when a person is subjected to unwanted conduct of a sexual nature, and the conduct in question has the purpose or effect of either violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Notably, the effect of the unwanted conduct is assessed from that person’s subjective viewpoint, so the harasser’s intentions do not matter. Further provision is made under the Equality Act where a person is treated less favourably for rejecting or submitting to sexual harassment.

The Equality and Human Rights Commission (“EHRC”) provides examples of conduct “of a sexual nature” in its technical guidance to employers. This term covers a wide range of behaviours, such as sexual comments or jokes, making promises in return for sexual favours and unwelcome touching, hugging or kissing. If it can be shown that this conduct had the purpose of violating that person’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them, then the definition of harassment is made out. However, if it cannot be shown to have that purpose, then the effect of that conduct on the person must be determined. This will take into account that person’s perception of the conduct, the other circumstances of the case and whether it was reasonable for the conduct to have that effect.

Employers can be held vicariously liable for sexual harassment by their employees if it occurs during their employment, which includes after-work parties or social events. Although employers will not be held liable if they took “all reasonable steps” to prevent the harassment, it is a high threshold to meet as employers will effectively need to show there are no further steps they could reasonably have been expected to take. The ECHR guidance provides an example where an employer will fail to rely on this defence if they have a harassment policy but have not taken steps to ensure their employees follow the policy, such as through training or the induction process, even if it would not have prevented the harassment.

What has changed?

The new Act introduces a legal duty on employers (alongside the existing framework) to take reasonable steps to prevent sexual harassment in the workplace. This duty requires employers not to wait until they receive a complaint of sexual harassment before they act but to anticipate scenarios when their employees may be subject to sexual harassment in the course of their employment. The new Act does not specify what “reasonable steps” are, but the ECHR’s guidance confirms it is an objective test. It will depend on the facts and circumstances of each situation, which include factors such as the company’s size and work environment.

Although there is no specific protection for employees from third-party harassment, the new duty places an obligation on employers to take reasonable steps to prevent sexual harassment of employees by third parties, such as clients and customers. However, a breach of this duty is not a standalone action employees can pursue in an employment tribunal. Employees can only rely on the breach of the duty when they successfully establish a sexual harassment claim.

What are the consequences of failing to comply with the new duty

Compensation: Failure to comply with the new duty will allow the employment tribunal to increase the compensation awarded by up to 25%. Interestingly, in a claim for multiple forms of harassment, this 25% uplift will apply to compensation awarded for all elements of the claim. (For example, if an employee successfully brings a claim for harassment based on disability and sexual harassment, the employment tribunal can award the 25% uplift in relation to both elements.) This could provide significant financial incentives for employers to ensure they comply with the new duty.

Enforcement actions by the EHRC: The new Act also provides the EHRC with increased powers to enforce the duty, regardless of whether an incident of sexual harassment has occurred. This allows them to investigate an employer, issue an unlawful act notice that requires the employer to address how they will remedy any breaches of the law, enter into binding agreements with an employer to prevent future unlawful acts and ask the court for an injunction to restrain an employer from committing an unlawful act.

What practical steps should employers take to ensure compliance?

The EHRC recently published its eight-step guide for employers on how to take reasonable steps to prevent sexual harassment of their employees. Although the guide is merely for illustrative purposes, as the law does not specify specific steps an employer must take, it is a useful guide for the types of steps employers can take.

It is crucial employers review and refresh their anti-harassment policy to ensure employees know that sexual harassment in the workplace will not be tolerated, that employers now have a duty to take reasonable steps to prevent sexual harassment, and the consequences of sexual harassment may lead to disciplinary action up to and including dismissal. For employers to comply with the new duty, it may be suitable to conduct a risk assessment to assess the risks of their employees being exposed to sexual harassment and consider how to minimise them.

Employers would be wise to ensure effective training of its managers and staff so they know what sexual harassment in the workplace looks like and feel confident that their employer will address any such complaints. A system for reporting complaints of sexual harassment anonymously and confidentially may also assist in this respect.

It is important to note from the EHRC guidance that employers should continue to review their policy and whether there are any further steps they can practicably take. This could be achieved through surveying staff anonymously on their experiences of sexual harassment or reviewing informal and formal complaints data to see if there are any patterns of complaints and whether any appropriate actions can be taken.

Further changes on the horizon – the Employment Rights Bill

The government published its highly anticipated Employment Rights Bill on 10 October, which included further amendments to the Equality Act 2010. The bill proposes a higher bar on the Act’s preventative duty, namely that employers should take “all reasonable steps” to prevent sexual harassment. This wording was contained in the original bill of the new Act before being significantly watered down by the House of Lords. The government also left it open to them in the bill to provide guidance on what “reasonable steps” might look like. This would be a welcome amendment if the government can get it through both Houses of Parliament, as it would align it with the existing statutory defence in the Equality Act 2010 for employers to take all reasonable steps to prevent discrimination.

The Employment Rights Bill also introduces liability on employers for third-party harassment of their employees, which includes an obligation to take all reasonable steps to prevent it. The bill broadly defines “third party” as anyone other than the employer or an employee of the employer and could, for example, include the partner of an employee. Again, this was the intention of the original bill of the new Act. However, it was rejected by the House of Lords on the basis that it would create a disproportionate financial burden on businesses. It remains to be seen whether the government can push this legislation through.