News & Insights

The Equality Act 2010 required employers to protect workers and employees from sexual harassment in the workplace.  In October 2024 the Equality Act was amended to place a new duty on employers to prevent their employees from being subject to sexual harassment in the course of their employment – whether by colleagues or third parties such as customers, contractors and suppliers. Changes in the Employment Rights Bill will enhance that duty and place additional burdens on employers.

In this article we look at the existing law and expected changes; and crucially, what employers should be doing to protect themselves from claims and get ready for the expected changes.

What is sexual harassment?

Sexual harassment is:

• unwanted conduct of a sexual nature that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
• treating someone less favourably because they have rejected or submitted to that conduct.

A wide range of behaviour can be sexual harassment. Examples include sexual jokes or comments, displaying or sharing sexually graphic images, questions about an individual’s sex life or talking about their own sex life and unwelcome physical contact.

What are the implications for employers?

Employers can be ‘vicariously liable’ for sexual harassment carried out by their employees if it occurs ‘in the course of employment’, which can extend to work related social events and parties.  Employers can face having to pay damages for injury to feelings or even personal injury, for instance if the harassment causes or exacerbates mental health problems.

Employers should also be aware that failing to protect an employee from sexual harassment could lead to a successful claim for constructive dismissal.

Is there a defence?

Yes, if the employer can show that they took ‘all reasonable steps’ to prevent the sexual harassment, they will not be liable.

What does the new duty to prevent sexual harassment entail?

Since October 2024 employers have been required to take ‘reasonable steps’ to prevent the sexual harassment of employees.  Failure to do so can result in an uplift of up to 25% of any compensation awarded.  This duty requires employers to:

• Take steps to prevent sexual harassment and adopt further preventative measures if it occurs.
• Carry out a risk assessment to assess the risk of employees being subject to sexual harassment and adopt measures to limit those risks.
• Regularly monitor and evaluate the effectiveness of those preventive measures.

These measures should include:

• Having an effective anti-harassment policy which describes unacceptable conduct, your zero-tolerance approach to that conduct, how staff can report it and the process that will be followed if they do, and the support available to victims and those who report it.
• Staff engagement – regular one to ones, staff surveys, exit interviews and open-door policies to encourage the reporting of any unacceptable conduct.
• Staff training – mandatory training for all staff on sexual harassment, standards of behaviour expected and unacceptable conduct and how to report concerns; and additional training for managers on how to handle complaints of sexual harassment.

What changes are proposed in the Employment Rights Bill?

• Employers currently have a duty to actively take ‘reasonable steps’ to prevent the sexual harassment of employees. The Bill will change this to ‘all reasonable steps’, increasing the importance of employers implementing the preventative measures outlined above.
• The Bill will make employers liable for third party harassment for all types of harassment not just sexual harassment i.e. harassment related to age, disability, gender reassignment, race, religion or belief and sexual orientation. This will be a significant change, particularly for businesses with staff in customer-facing roles or working with the public, contractors or partner organisations.  All the preventative measures outlined above would need to be applied to all types of harassment.
• The Bill will make disclosures related to sexual harassment protected by the whistleblowing regime.
• Confidentiality and non-disclosure provisions will not be enforceable in relation to disclosures relating to discrimination or harassment committed by the employer or a colleague.

How to get ready

The changes are expected to come into force in October 2026, and April 2026 for the disclosure related changes.  Regulations setting out the detail of the ‘all reasonable steps’ that should be taken to prevent sexual harassment are expected in 2027. Changing practice and workplace culture now will help you prepare and minimise the risk of claims. We can advise you on the most effective measures that you can take to protect your organisation, such as:

• risk assessment and prevention;
• staff training;
• clear and robust policies and how implement them effectively;
• reporting and investigation mechanisms;
• fostering a zero-tolerance culture;
• provisions in contracts with third parties; and
• policy statements on websites and signage.

How we can help

We can provide practical and bespoke advice to ensure you take effective steps now to minimise the risk of sexual harassment issues negatively impacting your staff and business.

For further information, please contact one of our Employment experts.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.