From 26^th October 2024 there is a new law being introduced in Great Britain (England, Wales and Scotland) – called the Worker Protection (Amendment of Equality Act 2010) Act 2023 – that will give Employers an obligation to take ‘reasonable steps’ to prevent their staff being subject to sexual harassment in the course of their employment (by other workers or by 3^rd parties, e.g. people who are not other staff, like customers, clients, contractors,  visitors, audience members, job applicants).

The Equality and Human Rights Commission (EHRC) have issued updated guidance which you can read here.

The background of this new workplace law:

Sexual Harassment and other forms of Harassment are already unlawful under the Equality Act 2010.  And Employers can already be held vicariously liable for any type of harassment by their staff against other staff, unless the Employer can show they took “all reasonable steps” to prevent the misconduct.

However, sexual harassment in the workplace remains widespread despite of the existing protections, so it is hoped that this new law will reduce the incidences of Sexual Harassment in the workplace. 

Examples of sexual harassment:

The recent media reports about ex-employees of Harrods highlighted by BBC News, who alleged sexual assault and/or rape by Mohammed Al Fayed, the former owner of Harrods. 

Research by the TUC (here) found that “over 1 in 2 women and nearly 7 out of 10 LGBT workers are sexually harassed in the workplace”.  The TUC found that sexual harassment is more prevalent for younger women, women with disabilities, those from BME backgrounds or from the LGBT community, migrant workers and those in precarious forms of work such as zero hours contracts and agency work.

Recent 2024 research from Solicitors Irwin Mitchell has found that Employment Tribunal cases about Sexual Harassment have increased by nearly 50% between 2019 and 2023 (114 reported cases in 2019, 167 in 2023); and that there have already been 116 cases in the first 6 months of 2024 alone.  As Sexual Harassment is not widely reported by workers as much as it actually happens, this is no doubt only a fraction of all cases. A Survey by the TUC in May 2023 backed this up, finding that 70% of women affected had not reported instances of Sexual Harassment to their employer.

A recent survey by INvolve said that 55% of women surveyed felt that women in their workplace were at risk of Sexual Harassment and 25% said they had witnessed Sexual Harassment in their workplace in the last 5 years. 

[Third party harassment provisions were in the original 2010 Equality Act – meaning Employers could potentially be liable for harassment of their employees by third parties who are not other employees, e.g. harassment by people who are customers, clients, contractors or visitors to Company premises for example – but this part of the law was repealed by the Conservative Government in October 2013.]

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What is the new sexual harassment law?

Introduces a new, proactive, ‘preventative’ duty on Employers to take ‘reasonable steps’ to prevent workers (including all PAYE staff, casual staff, Contractors, Schedule D staff and any other types of staff) from being sexually harassed in the course of their employment. 

Sexual harassment is defined as: unwanted conduct of a sexual nature which has the purpose or effect of violating the individual’s dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment for them.

The new law only applies to sexual harassment, it does not apply to other types of harassment. 

The new law was significantly watered down on its way through Parliament in 2023, however the new law gives Employment Tribunals the power to increase compensation by up to 25% to an individual who makes a successful claim for Sexual Harassment, if the Employer has failed to take reasonable steps to prevent that harassment happening.

Under the new law, the EHRC will have powers to enforce the new law and can take enforcement action against companies who have not complied with their new duty to prevent Sexual Harassment. In addition, workers will be able to report any concerns to the EHRC if they think their Employer has not done their preventative duty (or not done it properly) – here.

What is Sexual Harassment?

Sexual harassment is not always obvious and can be subtle, but often escalates from an ‘innocent’ starting point.

Examples include:  

• Physical: any unwanted physical contact, from a hug or a kiss to touching an arm or any part of someone else’s body, to sexual assault. 
• Non-verbal: standing too close to someone, prolonged eye contact with them, intrusive and sexual gestures – all these can make individuals feel uncomfortable and unsafe.
• Verbal: Offensive and derogatory language, sexually explicit comments or jokes, inappropriate or suggestive comments or questions or discussions, and behaviour like wolf-whistling or flirting, that create a toxic work environment.
• Digital: Inappropriate messages containing sexual comments and/or innuendos, emojis or sexually graphic pictures and offensive images sent digitally at any time. 

Sexual Harassment is behaviour of a sexual nature that it was unwanted and/or offensive to the person receiving the behaviour. It can be perpetrated by any gender against any gender. 

Behaviour that is acceptable to one person does not mean that it will be acceptable to another.

Defining sexual harassment clearly in company policies is crucial to ensure that when harassment is reported the managers investigating the complaints are able to identify the reported allegations as sexual harassment. 

What are ‘reasonable steps’?

The steps that an Employer needs to take, under the new law, will vary depending on the size and resources of the Company and the potential risk areas/factors that need to be considered.  The new law does not give minimum standards or set out those ‘reasonable steps’ an employer should take. 

However, all employers (regardless of size) are affected by this new law - although, of course, larger employers will be expected to do more - and will be expected to ‘anticipate’ that harassment can occur by taking preventative action beforehand, i.e. not waiting until an incident of Sexual Harassment has taken place.

The EHRC Guidance gives various examples of how to identify risks and Employers will need to consider the risk of Sexual Harassment occurring in their workplace by considering:

• The working environment and the sector the employer operates in;
• The nature of the contact with other staff and third parties (consider what behaviours, for e.g., Clients and their staff, or the public when participating in a production, or other visitors etc. exhibit towards your staff and how you can alter the behaviour or at least explain to staff how to remove themselves from difficult situations)
• Power imbalances or lack of diversity in the workplace (including where there is a male-dominated workforce); 
• Staff who work in insecure jobs;
• Staff who are lone workers or need to meet others on their own (consider do they need a colleague present);
• Staff who have Customer-facing duties;
• Behaviour at work/social events/launch events/award ceremonies etc , especially where alcohol is served.
• Lastly, Employers cannot just assume that because they don’t think Sexual Harassment is happening, it isn’t happening.

Employers will have a ‘preventative duty’ to take reasonable steps to reduce the risks of Sexual Harassment of workers (by anyone else), which means they should undertake a risk assessment to anticipate possible situations/scenarios where their workers may be subject to Sexual Harassment and take action, where it is reasonable to do so, to prevent that harassment taking place (and stop it happening again).

Employers should also consider what they have already done to prevent Sexual Harassment in the workplace, and decide if those steps have been effective or not.

The EHRC Guidance gives case studies of what firms need to consider (including an example of a small Theatre Company considering what steps it should take under this new law).  The EHRC also has an 8-step Guide to preventing sexual harassment for Employers, which you can see here.;

Employers will need to improve the safety and welfare of their staff by having a strategy to prevent Sexual Harassment at work (by anyone, to anyone) by:

• Providing regular training on preventing harassment (and explaining exactly what harassment is), and specific training to those more senior staff who are likely to handle complaints;
• Taking complaints of Sexual Harassment seriously and investigating them properly – do not ignore them because they are ‘awkward’ or bat complaints away because they seem trivial;
• Making sure staff understand how to raise a complaint and who they can talk to about their concerns;
• Taking action against perpetrators when their misconduct is proven, using the disciplinary procedure;
• Communication: Ensuring managers/leaders give strong anti-harassment messages to staff, to create a climate of respect and inclusiveness and ensure there is a zero tolerance towards harassment of any type, by anyone. This includes communicating to Clients and others that you have a zero tolerance toward sexual harassment in the workplace; 
• Ensuring Induction programmes set out the Company’s expectations in terms of culture and behaviour and the Company has an Anti-Harassment policy/Equality policy that is updated and easily available to all staff;
• Updating Disciplinary and Grievance policies (and any other relevant policies) as necessary;
• Reviewing the measures you take, regularly, to ensure they go far enough to prevent sexual harassment in the workplace.

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Future developments?

The EHRC is expected to update its statutory Employment: Code of Practice to reflect the new duty on employers from October 2024, but it’s not been published yet (8.10.24)

Before coming into power, Labour’s manifesto – under ‘Safer Workplaces’ - promised to ‘strengthen the legal duty for employers to take all reasonable steps to stop Sexual Harassment before it starts”, including making employers directly liable for 3^rd party sexual harassment (which this new law doesn’t).  So, the new Labour government may amend the legislation and guidance in the future.

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