The law on preventing sexual harassment in the workplace is changing – again.

Current Law

Within the last year, we have seen a number of changes in respect of the law surrounding the prevention of sexual harassment in the workplace. The Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force on 26 October 2024, and along with it, a new preventative duty for employers, requiring them to take reasonable steps to prevent sexual harassment towards their employees in the course of their employment.

Proposed Changes

The Employment Rights Bill is set to introduce further changes in this area. The Bill seeks to strengthen the existing preventative duty and will require employers to take ‘all reasonable steps’ to avoid and prevent sexual harassment of their employees. Not only will employers be expected to take all reasonable steps to prevent sexual harassment within the workplace, but they will also be considered liable for failures to prevent sexual harassment from third parties, such as clients, customers and suppliers, if they have not taken all reasonable steps.

It should be noted, that whilst we are focusing on the changes to the law surrounding the prevention of sexual harassment in this article, the proposed strengthening of the preventative duty by the Employment Rights Bill, will extend to all forms of harassment. This means that Employers will be liable for failures to prevent any kind of harassment by employees or third parties alike, if it is proven that they have not taken all reasonable steps.

Whilst the current legislation does not specify what constitutes a ‘reasonable step’, the Employment Rights Bill is expected to set out a clearer definition. It is expected that ‘reasonable steps’ will follow the Equality and Human Rights Commission’s (EHRC) guidelines, in terms of what they consider should be done by employers. Such steps could include:

• Developing an anti-harassment policy;
• Engaging with staff (to ensure they are aware of the sexual harassment policy, the consequences of breaching it, and the process for reporting incidents);
• Undertaking risk assessments and considering the factors that may increase exposure to sexual harassment and considering preventative measures;
• Setting up a system whereby employees can report instances of sexual harassment, anonymously or otherwise;
• Offering training to employees on how to identify and handle sexual harassment in the workplace, whether internally or from third parties;
• Having a process in place to handle complaints;
• Treating third party harassment claims with the same level of seriousness; and
• Undertaking regular reviews of the preventative measures in place and their effectiveness.

As we have previously reported, a breach of this duty will result in consequences for the Employer. Employment Tribunals will be capable of increasing the compensation due to the employee in instances of successful sexual harassment claims, by up to 25%. It is clear then that a failure to adhere to this duty could turn out to be a costly mistake.

Whilst this heightened bar may be daunting, the expectations upon Employers remain fair. The Bill will take into consideration the fact that ‘reasonable steps’ cannot be a one size fits all approach. The lengths that employers will be expected to go to will be determined in line with their size, sector, and other relevant factors. In other words, the ‘reasonableness’ of actions to be taken will be determined on a sliding scale. Employers will only be expected to take practicable measures. For example, it is understood that employers will be more limited in their ability to police the actions of third parties, and this restriction will be taken into consideration by the Employment Tribunal.

Furthermore, the Bill proposes that allegations of sexual harassment will become a ‘qualified disclosure’ under whistleblowing legislation, meaning that any employee making a complaint of sexual harassment at work will be protected by this legislation. This additional protection will result in employees that are treated detrimentally following their disclosure of sexual harassment, having the ability to pursue a whistleblowing claim against their employer.

As previously mentioned, one of the Bill’s most significant amendments is the proposal for restrictions on the use of non-disclosure agreements. If this becomes law it will prevent employers seeking, through a Settlement Agreement, to suppress disclosures of sexual harassment in the workplace. Any clause that seeks to do so, will be unenforceable.

Summary

In light of these recent developments, employers that have implemented ‘reasonable steps’ under the October 2024 preventative duty will be well positioned to adapt to the upcoming changes and can remain assured that they will not be penalised for failing to avoid unforeseeable incidents or for failing to take impractical measures. For those that haven’t, no need to panic, as the majority of the changes are not expected to come into force until October 2026, allowing ample time for a review of anti-harassment measures.

If you would like further information and advice on these upcoming changes, please do not hesitate to contact a member of BTO’s Employment team.