New Employer Duty to Protect Employees from Sexual Harassment

March 4, 2024

The Worker Protection (Amendment of Equality Act) Act 2023 (the Act), scheduled to be effective on or around 26 October 2024, redefines employer responsibilities and introduces an onus on employers to address and take preemptive steps to prevent sexual harassment at work.

New section 40A Equality Act 2010 (EqAct) states that “An employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment.” The Act applies to employers of any size in England, Scotland and Wales.

The current law

The EqAct currently defines sexual harassment as “unwanted conduct of a sexual nature” and applies to such harassment by and of all genders. The EqAct currently provides a defence for an employer in a harassment claim if it can demonstrate that it took “all reasonable steps” to prevent the unwanted conduct.

Accordingly, employers hoping to rely on such a defence in case of future claims, would need to introduce “all”reasonable steps. The limits of what constitutes “all reasonable steps” may be unclear but, at a minimum, includes steps such as workplace training and intervention upon becoming aware of potentially troubling conduct.

However, the EqAct does not currently impose a positive obligation for an employer to take reasonable or any steps to prevent harassment at work.

Paradigm shift in approach

The Act will, with effect from October 2024, change the approach to prevention of sexual harassment from an opt-in defence to a legal requirement to implement reasonable preventative steps.

The new obligation is relatively narrow in reach, however — it is limited to harassment of a sexual nature and does not stretch to cover harassment regarding other protected characteristics, such as race, religion or disability. Harassment regarding an individual’s gender, for example, would not be covered unless there is a sexual component to the harassment. Additionally, the obligation has not been extended, as some interest groups originally hoped, to cover sexual harassment of employees by third parties, such as customers, clients or suppliers.

The new Act does not track the existing language in the EqAct, and omits “all” from the reasonable steps employers should take, which suggests a slightly less burdensome approach; i.e., currently, employers should take “all reasonable steps” to invoke a defence to sexual harassment claims, whereas from the effective date, employers must take “reasonable steps” in order to comply with their legal obligation.

Consequences of failing to take reasonable steps

Although failing to take reasonable steps will not give rise to free-standing claims, such a failure could result in an employment tribunal uplifting awards in claims involving sexual harassment in the workplace by 25%. The increase would apply to any part of an award relating to harassment generally and not just the sexual harassment element, although the latter must form part of the claim to trigger the uplift.

What qualifies as reasonable?

Currently, there is no government guidance on what qualifies as “reasonable” steps that employers would be obligated to undertake. However, the below measures are likely to be considered reasonable steps:

  1. Map the workplace to identify areas requiring attention. Although sexual harassment can, of course, happen to any gender and be perpetrated by any gender, it may be reasonable to first examine teams or workspaces with mixed genders or where one gender is in the minority and/or in subordinate positions, where employers may wish to target particular training(s) or other preemptive steps.
  2. Audit the workplace for known incidents of historical sexual harassment. Gathering and/or reviewing information and statistics about previous incidents may be helpful to inform risk assessments (and, therefore, may itself be a reasonable step), as well as assisting in determining what other preventative steps may reasonably be required. If it is considered that this audit may reveal or collate information that itself could create legal risk, employers may wish to consider engaging outside counsel to conduct an initial investigation, protected by privilege, before determining whether the audit exercise will help or hinder its defence of future claims.
  3. Review and refresh existing anti-harassment and bullying policies. As a matter of course, policies and handbooks should be updated periodically and visibly rolled out to all employees.
  4. Roll out and/or refresh sexual harassment training. Employees of all levels of seniority should be required to take meaningful, bespoke, quality training on a reasonably frequent basis (e.g., at the beginning of anyone’s employment and at least once every two years thereafter). Attendance should always be tracked and recorded by employers and records retained. Furthermore, it may later prove important to have retained the content of that training.
  5. Appoint individual(s) to be responsible for ensuring reasonable steps are taken. The UK government has emphasised accountability to underpin these changes and, therefore, especially larger employers should ensure that responsibility for implementing reasonable preventative measures is placed on a specific visible team or senior individual(s) in the workplace. The person should be charged with monitoring, reporting and evaluating existing measures and troubleshooting any issues relating to sexual harassment, and held to account for this responsibility.
  6. Empower employees to report harassment. Employees should be encouraged to make good faith disclosures around harassment they have witnessed or to which they have been subjected. Whistleblowing policies also should be revised to include information relating to harassment of any kind, including sexual harassment (it should not be left to individual employees to assess the legal nature of any harassment they witness). It is always good practice to consult with employees to inform the employer’s approach to its legal obligations in the workplace.

For advice on how employers can prepare for the implementation of the Act or in respect to anti-harassment strategies more generally, please contact Dan Peyton or Adam Penman.