Sexual harassment in the workplace – new duty in force from October 2024

Posted: 29/11/2023

The Worker Protection (Amendment of Equality Act 2010) Act 2023, which will come into force on 26 October 2024, amends the Equality Act 2010 in two respects. It will:

• introduce a new duty on employers to take reasonable steps to prevent sexual harassment of their employees. This marks a key change in focus in the legislation from redress to prevention, imposing a new obligation on employers to be proactive in tackling sexual harassment; and
• give employment tribunals the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached this new duty – this uplift could be significant, especially as compensation awarded in the most serious cases of sexual harassment can exceed £50,000.

It is important to note that this new duty does not give rise to a freestanding claim and must be attached to a claim for sexual harassment.

The duty can also be enforced by the Equality and Human Rights Commission (EHRC), using its existing powers of enforcement, including investigations. 

While the new duty will be significant for employers, the new legislation does not go as far as originally proposed, with the House of Lords making two amendments to the draft legislation, namely:

• removing the proposed clause which would have restored the third-party harassment provisions in the Equality Act, which were repealed in 2013. The removal of this clause means that the new act does not change the existing law in relation to third-party harassment; and
• requiring employers to take ‘reasonable steps’, rather than ‘all reasonable steps’ (our emphasis), to protect employees from sexual harassment in the course of employment.

It is understood that this amendment is not intended to affect the existing statutory defence to a claim of sexual harassment under section 109(4) of the Equality Act, where employers have taken 'all reasonable steps' to prevent it. This is a high hurdle for employers to surmount, as it is relatively easy for a claimant to suggest other steps that an employer could have taken, thereby demonstrating that they did not take ‘all’ reasonable steps. 

Rather, the amendment will create a separate ‘reasonable steps’ test for the new duty on employers to prevent sexual harassment. This is a lesser test, which should be easier for employers to satisfy, although it remains to be seen how this new duty will be approached by tribunals, particularly given that they will already have made a finding or findings of sexual harassment before considering this duty.

It is understood that the EHRC will update its technical guidance on sexual harassment and harassment at work to reflect the new duty.

Implications for employers

Although the impact of the new legislation will be less significant than originally intended, the new duty must not be ignored by employers, who should be reviewing their practices now in order to meet the duty when it comes into force next October. The Labour Party has also indicated that, if it wins the next general election, it will revisit the issue of third-party harassment, and make it a duty to take ‘all reasonable steps’ to prevent sexual harassment in the workplace, although these changes would again need to go through the House of Lords. 

What steps can businesses take now in the lead up to next October? Here are a few suggestions:

• Put in place (if you haven’t already done so) a reporting register for complaints about all forms of harassment in the workplace. This should help to detect any trends and provide an opportunity to resolve the issues. This register would need to be kept secure and access should be strictly limited to those who need to know.
• Review and update anti-harassment and dignity at work policies and re-circulate to all staff to ensure they are aware of the standard of behaviour expected of them, equip them with the tools to address such behaviour, and raise awareness of the protection available to them.
• Review and update anti-harassment training and ensure that this is rolled out as required. Case law has demonstrated that training which is stale, or no more than a tick-box exercise is unlikely to meet the ‘all reasonable steps’ defence to a sexual harassment claim. It remains to be seen whether it will meet the lesser duty to take ‘reasonable steps’, to protect employees from sexual harassment in the course of employment, but it would be advisable to ensure that any training is up-to-date and meaningful.

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