Changes to the law on sexual harassment
As August approaches, employers must be mindful of the new changes to the law surrounding sexual harassment, which will be introduced in October this year under the Worker Protection (Amendment of Equality Act 2010) Act.
The Act will introduce a new statutory duty on employers to take reasonable steps to prevent sexual harassment of employees in the course of their employment. The law already provides a defence to an harassment claim if an employer can show they had taken all reasonable steps to prevent it from happening so, it was always advisable to take such steps, but there was no requirement to do so.
Come October, the new law will go further by placing a separate legal obligation on all employers to prevent sexual harassment by their own workers.
Employers must not wait for an instance of sexual harassment to occur, and should anticipate instances where an employee may be subject to sexual harassment and take the appropriate steps to prevent this. If sexual harassment has occurred previously, employers should be taking steps to ensure that this does not happen again.
It is therefore important to be considering measures now, so that employers are ready for when the law comes into effect.
So what will be considered reasonable?
Whilst ‘reasonable steps’ has not been defined, this will mean introducing pragmatic measures which are tailored and proportionate to the business. Examples of this will include implementing regular training and ensuring that policies on anti-harassment are all-inclusive, and up to date.
The Equality and Human Rights Commission (EHRC) is currently in the midst of consulting on its new guidance, which includes new information on the new preventative duty, and encompasses recent amendments to the Equality Act 2010. This will build upon the current guidance, which was issued in 2020 and can be found at the following link https://www.equalityhumanrights.com/equality/equality-act-2010/sexual-harassment. The new section in the guidance will be named ‘obligations and liabilities under the Act’.
What happens if this duty is breached?
If an employer falls short of this new preventive duty, there will be consequences. The EHRC will have the ability to take enforcement action against the employer. The EHRC will not require an incident of sexual assault to occur to do this.
Further, Employment Tribunals will also have the power to increase any compensation awarded to an employee for sexual harassment by up to 25% where they have been sexually harassed and the employer is found to have breached the new duty.
In past cases, we have seen awards in excess of £50,000 where sexual harassment has been found to have occurred. Using this as an example, as of October, a failure to take reasonable steps could result in a 25% uplift, which would have entitled the Claimant to an additional £12,500.
It must be noted that an individual cannot bring a claim for failing to adhere to the preventative duty alone.
What should Employers consider when implementing reasonable steps?
Although this new law does not come into effect until October 2024, employers should take action now to make sure that they are ready to show that they are proactively taking reasonable steps to prevent sexual harassment. When determining which steps will be reasonable, according to the EHRC an employer should consider the following:
- The risk of sexual harassment occurring in the course of employment;
- Steps which could be taken to mitigate the risks, and prevent sexual harassment;
- Consideration of which steps would be reasonable to take; and
- Implementation of the measures.
To assist this exercise, the employer may also wish to consider:
- The nature of the business
- The size of the business
- Any risks which are present in the business
What are some examples of measures?
- Mandatory training on anti-harassment to educate employees on how to spot sexual harassment, how to report this, and how they can help prevent this. This should be delivered frequently.
- Provide regular equality and diversity training to staff (at least annually).
- Ensure that equal opportunities, anti-bullying and harassment and disciplinary policies, are comprehensive and updated to address the new duty, and include the proactive measures which the employer intends to take to meet the new preventative duty. Employers may wish to seek legal advice in this regard.
- A zero tolerance approach must be adopted to sexual harassment, and communicated to all staff. Senior leaders should lead by example.
- Senior staff should be given appropriate training so that they can handle any complaint of sexual harassment effectively, and are confident in doing so.
- Employees must be made aware of how to report sexual harassment; therefore employers must implement reporting methods. Employers may choose to have numerous reporting methods, including an anonymous reporting line for those who do not wish to come forward directly.
- Employers must monitor their policies and procedures in relation to sexual harassment, and ensure that this is working in practice. Where necessary, new measures should be implemented and policies updated.
- Employers must have a method of detecting sexual harassment, or spotting patterns. This could be done by introducing a sexual harassment register, and/or by addressing this in exit interviews with employees or by conducting regular 1-1’s.
- Employers should signpost employees to appropriate support services, both within the business, and externally.

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