A new mandatory duty to take reasonable steps to prevent sexual harassment came into force in October 2024. In this guide, we cover the basic legal principles surrounding sexual harassment and what the changes mean for your business. We also explain the steps you can take now to prepare for the new rules.
Contents:
- What is sexual harassment and who is protected?
- What’s changed?
- Will there be any consequences for getting it wrong?
- What can we do to prepare?
- What are some examples of sexual harassment?
- What if we already have policies and procedures dealing with sexual harassment?
- What can we do if we receive a sexual harassment complaint?
- Additional resources
What is sexual harassment and who is protected?
Sexual harassment is one of the most sensitive employee relations issues you can face as a business owner or HR professional and it can involve anyone from junior employees to senior management.
New legislation introduced in October 2024 means that you must take ‘proactive’ measures to prevent risk in your workplace or face costly consequences.
Beyond the general protection against discrimination and harassment related to a protected characteristic, the Equality Act 2010 (EqA 2010) provides specific protection to workers against sexual harassment. The act defines sexual harassment as:
- unwanted conduct of a sexual nature
- that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
It is also unlawful under the act to treat an employee less favourably because the employee rejected or submitted to unwanted conduct of a sexual nature or that is related to gender reassignment or sex.
EqA 2010 protects a broad range of individuals against sexual harassment. This includes all employees, workers, apprentices, and agency workers. It also includes job applicants, meaning the recruitment processes must be free of sexual harassment.
What’s changed?
The changes that came into effect in October 2024 now require employers to take a far more proactive approach to dealing with sexual harassment in the workplace. Since 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 has:
- introduced a new mandatory duty on employers to take reasonable steps to prevent sexual harassment of employees
- given employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer has breached the new mandatory duty
This means that employers must take reasonable steps to prevent sexual harassment in the workplace. This includes instances of worker-on-worker harassment, as well as harassment by third parties like your customers or suppliers.
Previously, there was no proactive requirement for employers to prevent sexual harassment - employment laws simply provided a curative remedy to employees who have been sexually harassed by allowing them to bring employment claims and giving employers a defence to those claims where they can show they took reasonable steps to prevent the harassment. The new law means employers must take reasonable steps to prevent sexual harassment from ever occurring in the first place, which the EHRC describes as a 'preventative' duty. Where employers discover sexual harassment, they must also take ongoing measures to ensure it doesn’t happen again.
When determining what constitutes 'reasonable steps', this depends on the specific circumstances and will vary from employer to employer. In its updated technical guidance for employers on sexual harassment, the EHRC lists several relevant factors which include:
- The employer’s size and resources
- The nature of the working environment and risks present
- The sector in which the employer operates in
- The nature of any third parties workers will interact with and the frequency of such interaction
- Whether taking a particular step would be effective and whether an alternative step would be more effective
- The time, cost and potential disruption of taking a particular step, weighed against the benefits of implementing the step
- Whether concerns have been raised with the employer that sexual harassment has occurred
- Whether the employer has complied with specific regulatory requirements (eg Financial Conduct Authority or General Medical Council rules)
- Where an employer has already implemented steps, whether these have actually been effective (eg a further instance of sexual harassment after steps have been implemented may indicate further steps are needed)
- A step may still be reasonable even if it would not have prevented sexual harassment from taking place
Will there be any consequences for getting it wrong?
Yes - employers would be breaking the law if they fail to comply with the new mandatory duty and there could be serious consequences.
- The EHRC has a wide range of enforcement powers they are able to use to enforce the new duty against employers, including conducting external investigations into an employer’s breach of the duty, requiring disclosure of relevant evidence, and issuing unlawful act notices.
- If an employee brings an employment tribunal claim alleging sexual harassment, an employment tribunal can uplift any compensation awarded to an employee by up to 25%.
In either case there is also the reputational damage for employers to consider. It’s therefore crucial for employers to generally comply with equality laws and to take steps now to prepare for the new mandatory duty.
Sexual Harassment Compliance Support
The new laws mean there is a much greater responsibility on you as an employer to prevent workplace sexual harassment. Don’t risk costly claims—take proactive steps now. Our expert employment lawyers provide tailored compliance support to safeguard your team and business.
What can we do to prepare?
The main question many employers will be asking is what constitutes 'reasonable' steps to prevent sexual harassment for their specific workplace context.
As well as the specific factors that are relevant to the reasonable steps discussed above, the EHRC has published a practical eight-step guide for employers with example measures an employer might consider when complying with the new duty. We discuss these below with some of our own thoughts, but importantly, these are not exhaustive and much will depend on the context of your business.
Employers should still review the fuller technical guidance and seek advice from our employment lawyers.
- Develop an effective anti-harassment policy.
Whether employers have a standalone harassment policy, or a specific sexual harassment policy, the EHRC expects this policy to robustly address risks of, and complaints about, sexual harassment.
This includes setting out a zero-tolerance approach to sexual harassment in the policy, giving clear definitions and examples of sexual harassment (including who is protected), acknowledging the relevance of aggravating factors such as abuse of power, and addressing how the employer will manage complaints of third-party harassment.
There are a number of additional specific terms that need to be included in sexual harassment policies in light of the new rules, so we recommend discussing this with one of our employment law solicitors to ensure your policies are legally compliant. - Engage staff
The EHRC guidance recommends regular one-to-ones with staff, the use of staff surveys and exit interviews and open-door policies. This is to encourage reporting and disclosure of sexual harassment risks and exactly where these risks lie within the business. As a minimum, workers need to know how they can report sexual harassment, where they can find the employer’s sexual harassment policy, and what the consequences are of breaching the policy.
A zero-tolerance company culture is likely to be something your senior leaders may wish to promote from the top through clear and effective communications. This could include reminders about behavioural expectations from your senior leaders at town hall meetings or from line managers during weekly stand-up meetings.
You might also consider more visible support and assistance by implementing workplace ‘champions’ who support and advise staff confidentially about sexual harassment complaints. Some organisations already use this type of support in other contexts (eg mental health first aiders). The idea is to provide a sounding board for employees who may be apprehensive about going straight to HR. At the same time, workplace champions should never be an alternative to formal HR intervention where there is a complaint of sexual harassment and so champions must be prepared to encourage victims to escalate matters when it’s appropriate and safe to do so. - Carry out risk assessments
Employers are encouraged to assess sexual harassment risks, including the factors that increase the risk of sexual harassment and what can be done to minimise these risks. This may include looking at where power imbalances lie (eg in reporting lines), whether there is a lack of diversity within the business, whether staff work alone or in vulnerable situations (eg night shift workers), and whether staff are in customer-facing roles or are expected to attend external events.
Risk assessments should be reviewed regularly and action taken to mitigate any new risks found. The EHRC guidance recommends employers produce action plans that set out what preventative steps they will take to address the risks they have identified and how they will be monitored, and to consider publishing their action plans to workers and the public (eg on their website). - Encourage reporting
Employers are encouraged to adopt a reporting system for workers to raise concerns about sexual harassment. The guidance makes it clear this should be an online or telephone reporting system.
Specifically, staff should be allowed to make anonymous reports of sexual harassment, even if this can be practically difficult for employers to investigate. The EHRC guidance suggests that anonymous reports can still be helpful, for example by allowing employers to remind staff of their sexual harassment policy and procedures and monitoring the business unit in which the complaint arose.
Employers must keep centralised, confidential and GDPR compliant records of all concerns raised, whether formal or informal, allowing trends in complaints to be reviewed over time. - Train your managers and staff
Specific training on what constitutes sexual harassment is likely to be helpful when complying with the new mandatory duty. As a minimum, all workers, including managers and senior staff, should receive training on what constitutes sexual harassment and what they should do if they experience or witness it. As with whistleblowing, it’s important to have readily available and accessible channels for staff to disclose incidents of sexual harassment. This should be set out in your sexual harassment policy and made available on your company’s intranet site.
Where an employer operates in a sector where third-party harassment from customers is more likely (eg hospitality or healthcare), specific training should be provided on how to address this. Employers must regularly review the effectiveness of their training and offer refresher training regularly. It’s also important for employers to keep records of who has attended sexual harassment training.
As with any discrimination training, it’s important to make sure that training never becomes ‘stale’ or a tick-box exercise. Workshops and external training can really help to keep your training up-to-date and dynamic, something our employment lawyers regularly support. - Address complaints immediately
Employers must take immediate action to address a complaint and consider how the worker wants the complaint to be resolved. In practice, this means investigating complaints thoroughly and without delay, monitoring the progress of investigations as well as whether any employees become repeat offenders. Employers will also need to ensure that complainants and witnesses do not become the subject of victimisation for raising a sexual harassment complaint. Complaints should be handled confidentially, and where a complaint could amount to a crime, employers should speak to the victim about whether and how they can be supported in reporting the crime to the police. - Deal with third-party harassment
The EHRC expects employers to take third-party harassment as seriously as worker-on-worker harassment. It expects employers to take steps to prevent third-party harassment, for example through reporting mechanisms and risk assessments for areas of the business where staff might be at high risk of this type of harassment (eg working alone with customers). - Monitor and evaluate steps taken
Employers should monitor steps taken to prevent sexual harassment and regularly evaluate how effective the steps are. This could include analysing data on complaints for trends or pockets of risk within the business, surveying staff anonymously on sexual harassment, comparing complaints and survey data, and holding lessons-learned sessions (eg for leaders and HR) after resolving complaints of sexual harassment.
The EHRC guidance also expects you to regularly review policies, procedures and training, seeking input from workers and worker representatives (eg staff networks and trade unions). Where the workplace or workforce has changed, employers should consider whether any further steps should be taken. This could be the case following significant organisational change resulting in changes in how and where staff work, for example, following a restructure, acquisition or TUPE transfer.
What are some examples of sexual harassment?
Sexual harassment can come in many forms, from clearly physical conduct to more subtle conduct that is sexual in nature such as ‘banter’. To help employers understand what can amount to sexual harassment, the Equality and Human Rights Commission (EHRC) has published guidance on sexual harassment at work (updated in September 2024 to take into account the new duty to prevent sexual harassment discussed in this article). Common examples of sexual harassment under the guidance include:
- Engaging in physical behaviour that is sexual in nature.
- Making sexual comments or jokes about someone.
- Looking, staring or leering at someone.
- Making propositions or sexual advances towards someone.
- Displaying sexually graphic pictures, posters or photos.
- Asking intrusive questions about a person’s private or sex life.
For example, a worker may sexually harass a co-worker by sharing pornographic images at work that the co-worker does not wish to see. Sexual harassment may also occur if a manager denies a team member’s promotion because the team member turned down the manager’s sexual advances at a work-related party. The actions of the harasser are also likely to amount to workplace misconduct which will need to be addressed in parallel with a sexual harassment investigation.
A worker’s conduct will still amount to sexual harassment even if there is no sexual motivation on the part of the accused. As long as the conduct is of a sexual nature and meets the other requirements of the definition of sexual harassment, it will be sexual harassment. The guidance is also clear that sexual harassment can occur when the conduct comes from someone of the same or a different sex, meaning sexual harassment cases may not always involve, for example, a male accused and female victim (although research confirms this is the most common pattern of sexual harassment).
Sexual harassment does not include conduct that is consensual, invited or mutual. The conduct has to be ‘unwanted’ in order to be sexual harassment.
What if we already have policies and procedures dealing with sexual harassment?
Many employers will already have policies and procedures in place to deal with sexual harassment complaints. While this might mean employers were compliant in the past, this is unlikely to be enough to comply with the new mandatory duty which requires a more proactive approach, with specific requirements for sexual harassment policies in particular. Employers must review their current practices and seek legal advice from an employment lawyer if changes need to be made.
What can we do if we receive a sexual harassment complaint?
If you receive a complaint of sexual harassment you should investigate it immediately and thoroughly. This means meeting all relevant witnesses, gathering the relevant facts and preparing an investigation report and outcome.
Sexual harassment investigations are particularly sensitive and may require some additional steps above and beyond a normal workplace investigation. This is likely to include consideration as to the gender of the investigator, how you will preserve anonymity for those involved and whether you need to put in place any safeguards to protect staff while the investigation takes place (eg temporary suspension of the accused or reassigning staff to different teams).
Our article on managing internal investigations is a good starting point for employers faced with a sexual harassment complaint. We also recommend seeking legal advice from one of our employment law solicitors because of the higher risks to your business that can arise in sexual harassment cases and the nuanced approach needed in this context.
If an investigation finds evidence of sexual harassment, you will need to consider the disciplinary consequences for the perpetrator. For the victim, you will likely need to take steps to safeguard their wellbeing and ensure they are not at risk of retaliation. You will also need to consider the steps you can take to prevent sexual harassment from happening again. This could include changes at a policy and company culture level, for example through more visible preventative measures (eg regularly updated training and reporting lines).
Additional resources
In addition to the main EHRC guidance on sexual harassment, employers may wish to consult additional guidance that has been published on managing sexual harassment in the workplace following the introduction of the new mandatory duty. This includes:
- EHRC checklist, action plan and monitoring logs
Sexual Harassment Compliance Support
The new laws mean there is a much greater responsibility on you as an employer to prevent workplace sexual harassment. Don’t risk costly claims—take proactive steps now. Our expert employment lawyers provide tailored compliance support to safeguard your team and business.
We will be closely monitoring further updates around the new mandatory duty to prevent sexual harassment. You can stay tuned by attending our webinars and subscribing to our newsletter as we will be sharing further details as they become clear.
Our employment law solicitors have extensive experience supporting employers with sexual harassment complaints and are also on hand to support you with any measures you need to put in place to comply with the new duty.
