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<p>Sexual harassment remains a problem in many workplaces. According to the <a href="https://assets.publishing.service.gov.uk/media/60f03e068fa8f50c77458285/2021-07-12_Sexual_Harassment_Report_FINAL.pdf" target="_blank" rel="noopener">2020 Sexual Harassment Survey conducted by the UK Government Equalities Office</a>, 29% of those in employment experienced some form of sexual harassment in their workplace or work-related environment over the 12-month period of the survey. Strikingly, 41% said there were no consequences for their perpetrator.</p>
<p>Not only are the effects devastating for victims, causing stress, anxiety and reduced job satisfaction, but allowing this kind of behaviour can also be detrimental to businesses as a whole. It can undermine the performance of employees (not only those subject to sexual harassment), decrease organisational commitment, create toxic workplaces and ultimately influence employees’ decisions to leave.</p>
<p>The UK’s employment law landscape is now beginning to respond to these problems in a much more proactive way. In this article, we explain how the legal landscape is evolving and what businesses must do to prevent and root out sexual harassment at work.</p>


Freddie-Nicolle Brace

The introduction of the new statutory duty provides a clearer benchmark for what businesses must do, ensuring those who have lagged in compliance are compelled to act, while offering clarity to those already striving to do the right thing.

<h3>The legal landscape on workplace sexual harassment today</h3>
<p>The <a href="https://www.legislation.gov.uk/ukpga/2010/15/contents" target="_blank" rel="noopener">Equality Act 2010</a> protects employees from discrimination based on defined ‘protected characteristics’, including age, disability, race, gender and sexual orientation. But as <a href="https://www.gov.uk/government/news/new-protections-from-sexual-harassment-come-into-force" target="_blank" rel="noopener">noted in a government press release</a> by the former Minister for Women and Equalities Anneliese Dodds, ‘persistent reports and revelations in recent years indicate that [sexual harassment] remains a problem.’</p>
<p>As an initial response to this, the <a href="https://www.legislation.gov.uk/ukpga/2023/51/contents" target="_blank" rel="noopener">Worker Protection (Amendment of Equality Act 2010) Act 2023</a> (the Worker Protection Act), which was first introduced by the Sunak government, came into effect on 26 October 2024. It introduced the statutory duty for employers to take ‘reasonable steps’ to prevent sexual harassment of their employees.</p>
<p>However, the government plans to go further. The <a href="https://bills.parliament.uk/bills/3737" target="_blank" rel="noopener">Employment Rights Bill 2024</a>, which is currently going through the House of Lords, proposes to strengthen this statutory duty by requiring employers to take ‘all’ reasonable steps (instead of ‘reasonable steps’) to prevent workplace sexual harassment. This will align the preventative duty with the existing defence to vicarious liability under <a href="https://www.legislation.gov.uk/ukpga/2010/15/section/109" target="_blank" rel="noopener">section 109(4) of the Equality Act 2010</a>. We explain these changes in greater detail in the section ‘Changes to sexual harassment legislation under the Employment Rights Bill’.</p>
<p>Speaking about these anticipated changes to the law, Freddie-Nicolle Brace, Senior Associate at Linnear Legal, said the following:</p>
<p>‘The issue of sexual harassment in the workplace is being brought into sharper focus due to shifting generational and social attitudes. We welcome the increased accountability and the growing willingness of individuals – both women and men – to speak out, although many still remain unheard. The introduction of the new statutory duty provides a clearer benchmark for what businesses must do, ensuring those who have lagged in compliance are compelled to act, while offering clarity to those already striving to do the right thing.</p>
<p>However, tackling such deeply personal and often emotional experiences requires more than legal compliance; it demands a genuine commitment. True change will come when businesses meet their obligations and believe in the values these duties represent.’</p>
<h3>How is sexual harassment at work defined in law?</h3>
<p>As defined by the Equality Act 2010, sexual harassment is unwanted behaviour of a sexual nature that has the <strong>purpose or effect </strong>of creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the complainant.</p>
<p>This behaviour may be verbal, physical or conducted online (for example, ‘doxxing’, which is when personal or identifying documents or details are circulated online about someone without their consent). It can include unwanted physical contact or propositions, comments about someone’s appearance and jokes of a sexual nature.</p>
<h3>Rights of employees under existing sexual harassment at work legislation</h3>
<p>Under existing UK legislation, workers have the right to be protected from harassment in the workplace and the right to report it. The Worker Protection Act introduced a preventative duty on employers – if an employer is found to have failed in their duty to prevent sexual harassment, tribunals can award an uplift of up to 25% on the compensation payable to the employee. Employers also have a duty to prevent sexual harassment from third parties in the course of employment. This includes taking measures to stop clients and suppliers sexually harassing employees, for example.</p>
<p>It’s important to note that, under the current law, this only applies to direct sexual harassment and does not yet address harassment based on other protected characteristics. However, this may be addressed by the Employment Rights Bill, along with a host of other changes outlined below.</p>
<h4>EHRC guidance on sexual harassment</h4>
<p>In 2020, the Equality and Human Rights Commission (EHRC) published <a href="https://www.equalityhumanrights.com/guidance/sexual-harassment-and-harassment-work-technical-guidance" target="_blank" rel="noopener">guidance on a preventative duty for employers regarding sexual harassment</a> (EHRC guidance). This guidance was updated in 2024 and followed by an <a href="https://www.equalityhumanrights.com/employer-8-step-guide-preventing-sexual-harassment-work" target="_blank" rel="noopener">8-step guide to prevent sexual harassment for employers</a>. EHRC guidance, which addresses third-party harassment, will inform much of what looks set to be enforced via the Employment Rights Bill – but it is only guidance, and is not legally binding. Despite this, it will be taken into account in employment tribunal proceedings.</p>
<h3>Changes to sexual harassment legislation under the Worker Protection Act</h3>
<p>The Worker Protection Act, which came into force in October 2024, was introduced by the previous government under Prime Minister Rishi Sunak with a view to drive a broader cultural change in the workplace.</p>
<h4>Duty to prevent sexual harassment</h4>
<p>A crucial change to the law introduced by the Worker Protection Act is a shift in emphasis toward prevention: employers should be focusing on proactive rather than reactive change, and should work to prevent sexual harassment from happening in the first place. This preventative duty will be expanded on by the Employment Rights Bill, which we discuss in greater detail below.</p>
<h4>Enhanced compensation for employees</h4>
<p>If a worker brings a sexual harassment claim and it is found that the employer’s duty to prevent sexual harassment has not been met, the worker could receive an increase in compensation by up to 15% as a result of non-compliance.</p>
<h3>Changes to sexual harassment legislation under the Employment Rights Bill</h3>
<p>The Employment Rights Bill seeks to expand on the Worker Protection Act and Equality Act. Although the reforms included in the Bill are being consulted on and are not expected to be implemented until 2026, we advise employers to ensure they have the correct policies in place to get ahead of the curve and prepare for these changes.</p>
<h4>Stronger language on duty to prevent sexual harassment</h4>
<p>The Employment Rights Bill seeks to amend the language regarding ‘reasonable steps’ employers must take to prevent sexual harassment to ‘<strong>all </strong>reasonable steps’. This places a greater emphasis on employers to ensure they have appropriate guidance for employees and highlights the importance of whistleblowing methods, as explained below.</p>
<h4>Delegated power to define ‘reasonable steps’</h4>
<p>Ministers will gain the ability to define what steps employers should take through regulations. These regulations won’t set out an exhaustive list, but they will inform whether an employer has taken or failed to take all reasonable steps to prevent workplace sexual harassment. They will likely take into account factors such as the size of the workplace, the nature of the work and industry, any history of previous sexual harassment incidents and the extent and frequency of interaction with third parties.</p>
<h4>Third-party harassment liability</h4>
<p>A survey conducted by the Trade Union Congress in May 2023 reported that <a href="https://committees.parliament.uk/writtenevidence/125060/pdf/" target="_blank" rel="noopener">39% of workplace sexual harassment had been committed by a third party</a>. Despite this, third-party harassment is not technically and explicitly covered by employment legislation. It was expected that a specific third-party liability would be added to the Worker Protection Act, but it was removed as the Act made its way through Parliament.</p>
<p>It&#8217;s now expected that the Employment Rights Bill will include this change, making employers liable for harassment by third parties to their employees in the course of their employment.</p>
<p>However, legal commentators have noted that this change is only a clarification of what is currently understood and enforced. EHRC guidance makes it clear that the preventative duty on employers extends to third parties, and while employees cannot make standalone claims, the EHRC could take enforcement action against an employer and increase an award of compensation in a related claim by up to 25%.</p>
<p>It is anticipated that the ability for employees to make standalone claims regarding third-party harassment may be introduced by the Employment Rights Bill.</p>
<h5>The chequered history of third-party harassment liability</h5>
<p>The law on third-party harassment has had a chequered history through the years. In 2000, the Employment Appeal Tribunal held in <em>Sidhu v Aerospace Composite Technology Ltd</em> that employers could in principle be liable for third-party harassment under the Sex Discrimination Act 1975, and in 2005, there was an amendment through the Employment Equality (Sex Discrimination) Regulations 2005 that clarified harassment could include unwanted conduct by a third party in an employment context, for which employers could be held vicariously liable.</p>
<p>Later, the Equality Act 2010 explicitly codified liability for third-party harassment if the employer knew of at least two prior incidents and failed to take reasonable steps to prevent a third. The coalition government repealed this in 2013, but case law that followed the repeal found that employers could be held liable where their inaction led to a violation of the worker’s dignity or led to an intimidating or hostile working environment.</p>
<p>However, this changed again in the Court of Appeal’s decision in <em>Unite the Union v Nailard</em>, where it was held that the Equality Act 2010 does not protect workers against third-party harassment and employer liability only arises where failure to act relates to a protected characteristic.</p>
<h4>Whistleblowing about sexual harassment in the workplace</h4>
<p>The Bill envisions sexual harassment being added to the current list of protected whistleblowing topics. It has been argued that this is more of a clarification than a change, as employees are technically already protected under the Equality Act, but there are potential implications this change could have beyond symbolic changes. For example, it will now be harder to use an NDA to prevent somebody from disclosing information about sexual harassment.</p>
<h4>Standalone tribunal claims</h4>
<p>It’s possible that the Employment Rights Bill may make room for standalone claims to be brought to employment tribunals if the employer has failed to take ‘all reasonable steps’ to prevent harassment – something that is not possible under the current law.</p>
<p>&nbsp;</p>
<h3>What employers need to do</h3>
<p>There are practical steps employers should take to ensure not only that they comply with current legislation on sexual harassment but they are also prepared for potential changes being brought about by the Employment Rights Bill. These include:</p>
<ul>
<li>Training managers on how to deal with and respond to sexual harassment and third-party sexual harassment</li>
<li>Developing and communicating policies that make clear that sexual harassment will not be tolerated</li>
<li>Setting standards of behaviour at work social events and off-site conduct</li>
<li>Encouraging a culture of openness by promoting internal whistleblowing routes</li>
<li>Reviewing third-party contracts and ensuring harassment policies are updated and reflected in supplier and client relationships</li>
<li>Introducing an ‘Ask for Angela’-type scheme, where employees can have code words to use in situations where they feel vulnerable</li>
</ul>
<p>It’s worth reviewing <a href="https://www.acas.org.uk/sexual-harassment/steps-for-employers-to-prevent-sexual-harassment#:~:text=What%20the%20law%20says,for%20example%20customers%20and%20clients" target="_blank" rel="noopener">ACAS guidance on preventing sexual harassment</a>, which offers a comprehensive list of steps businesses can take. EHRC technical guidance, highlighted above, also provides <a href="https://www.equalityhumanrights.com/employer-8-step-guide-preventing-sexual-harassment-work" target="_blank" rel="noopener">detailed support for implementing these steps</a>.</p>
<h3>Potential legal consequences for inaction</h3>
<p>Employers who fail to comply with their duties to protect workers from sexual harassment face legal and reputational risks. If a tribunal finds that sexual harassment occurred and the employer did not take reasonable steps (or all reasonable steps following the passage of the Employment Rights Bill into law), compensation may be increased by up to 25%. In addition, the EHRC has the power to investigate and take enforcement action.</p>
<p>In recent years, the average award for sex discrimination claims, which includes sexual harassment, has <a href="https://bima.co.uk/sexual-harassment-at-work-stay-ahead-of-the-changes-dont-get-caught-unprepared/" target="_blank" rel="noopener">increased from £24,630 in 2021/22 to £37,607 in 2022/23</a> &#8211; and that’s before the 25% uplift introduced by the Worker Protection Act was enforced. The highest award in any employment tribunal in 2023/24 was a sex discrimination award, at <a href="https://www.gov.uk/government/statistics/tribunals-statistics-quarterly-april-to-june-2024/tribunal-statistics-quarterly-april-to-june-2024" target="_blank" rel="noopener">nearly £1 million</a>.</p>
<h3>Preparing your business for the Employment Rights Bill</h3>
<p>Although changes have already been introduced in the Worker Protection Act, the biggest changes for businesses to prepare for will likely follow the implementation of the Employment Rights Bill. Currently, the Bill is in consultation, and it’s not expected to take effect until 2026. Businesses, therefore, have time to get up to speed.</p>
<p>Regardless of regulatory and legislative developments, it’s good practice for all businesses to protect their staff and ensure they have the correct policies in place to foster a healthy, productive and safe workplace.</p>
<p>If you would like tailored guidance on <a href="https://linnearcms.wpenginepowered.com/employment/">employment law</a>, including how to comply with the Worker Protection Act or to prepare for the Employment Rights Bill, <a href="https://linnearcms.wpenginepowered.com/get-in-touch/">speak to a lawyer</a> at Linnear Legal today.</p>


Safeguarding employees from sexual harassment

Learn about current sexual harassment legislation and anticipated changes under the Employment Rights Bill to protect employees.

Safeguarding employees from sexual harassment | Linnear Legal

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