New legal duty for employers to prevent sexual harassment in the workplace

The Worker Protection (Amendment of Equality Act 2010) Bill received Royal Assent on 26th October 2023 to become an Act. The Act will introduce a duty on employers to take reasonable steps to prevent sexual harassment in the workplace. It is due to come into force a year from the date on which it was passed.

Current legal framework

The Equality Act 2010 ensures that workers are protected against sexual harassment committed by any colleague. It defines that the sexual conduct must be unwanted by the victim and violate their dignity or create an environment that is intimidating, hostile, degrading, humiliating, or offensive. This means that a wide range of behaviour can be encompassed, including; sexual advances; displaying sexually graphic pictures, posters or photos; groping; remarks about someone’s body or appearance; sexual jokes or comments; flashing, cat calls or wolf-whistling; making promises in return for sexual favours; or a person discussing their own sex life. 

The common factors are the effect of the conduct on the victim and the fact that it is unwanted. Whatever form, sexual harassment in the workplace is unlawful.

Employers should take all reasonable steps to prevent harassment or discrimination such as:

• Having a policy in place that all staff are aware of, fully understand, and have training on.
• Taking steps to effectively deal with harassment complaints.
• Having appropriate disciplinary actions in place to use against perpetrators.

Without these things, employers may be at risk of liability charges. 

Under the current laws, it is difficult for employees to bring successful claims against their employers for harassments at work by customers or other third parties. Third party harassment is where an employee is harassed by someone they have encountered as part of their work like a client or customer. 

In 2021, just 23 out of 56 tribunals of sexual harassment at work cases were successful.

Background information around the changes to the law

Recent revelations and movements like the #MeToo movement have been key in prompting the government to re-evaluate the existing framework around sexual harassment at work. 

The #MeToo movement was ignited by sexual harassment allegations in the entertainment industry in October 2017. Although many initial accusations targeted high-profile figures, the movement galvanised women across the world to speak up about sexual harassment they had experienced in their field. 

A study by Fawcett Society revealed that 40% of women have endured workplace harassment during their careers, with most of them experiencing inappropriate and offensive comments rather than unwanted touching. Surprisingly, a quarter of women reported that this escalated during the COVID-19 pandemic when they were working remotely. 

These developments, amongst others, highlighted the imperative need for change. As the Government take action to combat and prevent workplace sexual harassment and scrutinises the role of NDA’s, the broader conversation focuses on transforming workplace cultures to ensure a safe and inclusive environment for all employees.  

The Worker Protection (Amendment of Equality Act 2010) Bill

The government made a pledge in July 2021 to introduce a legislation that would mean the  employer would have to take active steps to prevent sexual harassment in the workplace. That legislation, The Worker Protection Bill, is making its final stages through Parliament. 

The Equality Act 2010 already has a provision that give employers a chance to avoid liability for harassment committed by its employees if it can prove that all reasonable steps were taken to prevent it happening. So, there is an existing incentive for employers to prevent sexual harassment. 

When the Bill gets enacted, employers will have an additional duty. If an employment tribunal finds that an employee has been sexually harassed, it must consider whether the employer took reasonable steps to prevent it and if so, to what extent. 

The initial bill drafting proposed liability on employers for harassment of their employees by third parties, such as a customer, client, supplier, or contractor, which meant an employee could therefore be harassed by simply overhearing an offensive conversation. 

It also proposed a proactive duty for employers to take all reasonable steps to prevent harassment of their workforce, such as training for managers and staff, and robust procedures for responding to complaints. 

Amendments were made at the House of Lords stage, such as the removal of proposed third-party liability and of the word ‘all’ from the proactive duty on employers to take reasonable steps to prevent harassment section. The House of Commons then considered and approved the amendment. 

The new bill sees a shift from reactive measures to proactive prevention. The current law on sexual harassments leaves the burden on employees to pursue a tribunal claim rather than on employers to take steps to prevent it from happening in the first place. This switch is a significant milestone in the fight against workplace sexual harassment and the changes are expected to result in updated policies and comprehensive training for all staff. 

Soon to become a new law, employers should be proactive in adapting their strategies and practices to align with the new legal framework. However, the duty will not come into force until 12 months after the Bill is passed, allowing employers time to prepare for the change.