Sexual harassment at work: new law and proposed new guidance

The law on preventing sexual harassment in the workplace is changing. Currently, there is no proactive legal obligation on employers to take active steps to prevent sexual harassment at work.

However, on 26 October 2024, the new Worker Protection (Amendment of Equality Act 2010) Act 2023 (“Act”) will come into force. The Act will introduce a new preventative duty on employers to take reasonable steps to prevent sexual harassment of their employees and workers in the workplace. The Act will amend the Equality Act 2010 to introduce this new positive duty and aims to create a safer workplace environment.

If an employer breaches this new preventative duty, there will be consequences. The UK’s equality watchdog, the Equality and Human Rights Commission (“EHRC”), will have the power to take enforcement action against the employer, and employment tribunals will have the power to increase compensation by up to 25% where an individual succeeds in a claim for sexual harassment and the tribunal finds that the employer failed to take reasonable steps to prevent it. Given that compensation awards for harassment claims are uncapped, failure to comply with the new duty could be costly for complacent employers.

Last week, the EHRC launched a consultation seeking views on proposed updates to its existing guidance on sexual harassment and harassment at work to include information on this new preventative duty so that employers, workers and their representatives understand how the Equality Act 2010 prohibits harassment at work.

Key provisions which are proposed include:

• Making it clear that the preventative duty only applies to sexual harassment  (i.e. it does not extend to harassment based on other protected characteristics such as race, age, sexual orientation, belief; nor harassment which is related to sex but is not conduct of a sexual nature).
• Requiring employers to take reasonable steps to prevent sexual harassment by their own workers and by third parties such as clients and customers. The extension of liability for harassment to acts of third parties was removed from the original Act when it made its way through the House of Lords. However, the EHRC guidance suggests that the new preventative duty will apply to actions in relation to both employees and third parties. From this it can be inferred that while the 3rd party harassment issue will not lead to an uplift in ET awards, the EHRC will (if these changes are made) use its enforcement powers if it finds that an employer is failing to protect its employees from sexual harassment by third parties.
• Anticipating that reasonable steps will vary depending on the size and resources of the employer but also emphasising that no employer will be exempt from the preventative duty;
• Emphasising that the preventative duty is an anticipatory duty i.e. employers should anticipate scenarios when its workers may be subject to sexual harassment in the course of their employment and take action to prevent this from taking place. If sexual harassment has taken place, the preventative duty means that an employer should take action to stop this from happening again.
• Explaining that an individual cannot bring a tribunal claim for breach of the preventative duty alone but also making it clear that the EHRC has the power to take enforcement action against employers who breach the preventative duty.

The EHRC’s consultation is only open for a short period of time (and will close on Tuesday 6 August 2024). Employers, trade unions, legal advisers and business organisations are being asked for their views on additions to the guidance, ahead of the new duty on employers coming into effect on 26 October. The consultation document can be accessed here for anyone who wishes to contribute.  It is expected that the final guidance will be issued before the new law comes into force.

If you would like further information on this topic, please do not hesitate to contact a member of BTO’s Employment Law Team.

This update contains general information only and does not constitute legal or other professional advice.