Duty to prevent sexual harassment - preparing for the October changes

Why should I read this?

Research estimates that over 50% of women and over 20% of men have experienced some form of unwanted sexual behaviour in the workplace, ranging from unwelcome jokes or comments of a sexual nature to serious sexual assault. The true scale is however uncertain, as many incidents go unreported.

With potential to impact physical and mental health, workplace culture, attendance and productivity, workplace sexual harassment is an issue that should not be overlooked by employers. Harassment has been unlawful for many years but employers have, to date, been able to defend claims on the basis that they took all reasonable steps to prevent harassment. However, new legislation coming into force on 26 October 2024 will go further, introducing a new positive duty on employers to take reasonable steps to prevent sexual harassment in the workplace. This is the first time a positive, proactive duty has been introduced.

In this briefing we consider the new duty and what employers can do now to prepare.

What do I need to know?

Unlawful harassment at work can take three broad forms:

• harassment which is related to a relevant protected characteristic such as sex;
• sexual harassment;
• less favourable treatment because a person submits to, or rejects sexual harassment or harassment related to sex or gender reassignment.

In all three forms, harassment means a person being subjected to unwanted conduct that has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. Sexual harassment refers to unwanted conduct of a sexual nature and can be perpetrated by someone of the same or a different sex.

Employers can be held vicariously liable for harassment by an employee in the course of their employment. A defence is available where an employer can show that they took "all reasonable steps" to prevent the employee from carrying out the discriminatory act or from doing anything of that description . However, there is currently no positive statutory duty on employers to take steps to prevent workplace harassment.

Concerns that the existing law offers insufficient protections against the harassment of workers resulted in calls for legislative change, including a mandatory duty for employers to protect workers from sexual harassment in the workplace.

On 26 October 2024 the new Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act) will come into force. The Act will require employers to proactively  take reasonable steps to prevent the sexual harassment of employees during the course of their employment. It does not create a standalone claim that employees can bring in an employment tribunal. Instead, claims for breach of the duty can only be considered by a tribunal where it has upheld an employee’s claim of sexual harassment. If an employer is found to have breached the preventative duty in such circumstances, the tribunal will have the power to increase the compensation for sexual harassment by up to 25%.

In addition to the tribunal’s power to uplift compensation, the Equality and Human Rights Commission (EHRC) will have the power to take enforcement action against employers. Such powers include investigations, unlawful act notices, action plans, agreements and injunctions.

The EHRC’s technical guidance on sexual harassment and harassment at work and provides advice on the types of actions employers can take to prevent and respond to workplace harassment. That guidance has recently been updated to include information on the new preventative duty. The EHRC has also updated its Employer 8-step guide to preventing sexual harassment in the workplace.

What about third party harassment?

Prior to 1 October 2013, a “three-strikes rule” provided that if harassment by a third party (such as a customer, client or contractor) had previously occurred on two occasions and the employer was aware of it, but failed to take reasonable steps to prevent it from happening again, then the employer could be held liable. The rule was removed with effect from 1 October 2013 and has not been re-enacted in the Act.

Although the Act does not change the law on third party harassment, the obligation contained in the Act for employers to take reasonable steps to prevent sexual harassment of employees during the course of employment could extend to taking steps to prevent sexual harassment by third parties. This has recently been reinforced in the EHRC’s updated guidance, which includes references to third party harassment. In particular, it makes clear that employers should consider “the risk their workers may be sexually harassed by third parties, and take reasonable steps to prevent such harassment”.

What can be expected next?

Further reforms in this area are expected. The new Government has committed to introduce protection from harassment by third parties, strengthen an employer’s duty to take all reasonable steps (not just reasonable steps) to prevent sexual harassment and update whistleblowing protections for women who report sexual harassment. These reforms are not however currently expected to be included in the Government’s more immediate plans.

In the meantime, following on from publishing its updated technical guidance, the EHRC will also update its Employment: Code of Practice to reflect the Act. In the EHRC’s recently published Draft Strategic Plan 2025-2018, “sex discrimination, harassment and/or victimisation, including sexual harassment, in the workplace” is called out as one of its areas of priority, with resources therefore likely to have been earmarked for exercising its regulatory powers to support the enforcement of the new preventative duty.

In the financial sector, the Financial Conduct Authority and the Prudential Regulation Authority published separate but closely aligned Consultation Papers last year, which included proposals to codify and expand the rules on non-financial misconduct, as well as bolster diversity and inclusion generally. The regulators are now taking longer to formulate plans for the latter, but there is strong support for the codified rules on non-financial misconduct including sexual harassment and making clear that ”bullying, sexual harassment or violence can never be justified”. These rules are expected later this year.

Concerns that non-disclosure agreements (NDAs) can be misused to silence victims of workplace sexual harassment have resulted in calls for greater regulation around their use. The previous Government announced that it would not legislate to ban the use of NDAs in harassment cases, and legislative reform in this area currently appears unlikely. However, the Legal Services Board is continuing to work with legal services regulators to prevent the misuse of NDAs.

What should I do next?

To comply with the preventative duty, employers must take reasonable steps to prevent sexual harassment of their workers in the course of employment.

Employers will need to be proactive in how they prevent and tackle sexual harassment at work, with the reasonable steps varying from employer to employer depending on factors such as the employer’s size, the sector it operates in, the working environment and its resources. See our checklist  for some key steps to consider.

Further reading/resources

Our in-person series of training courses - Preventing sexual harassment in the workplace: the new positive duty on employers – is aimed at HR professionals and mangers, equality & wellbeing professionals and line managers looking to improve their understanding of sexual harassment in the workplace and considers what steps employers will need to take to ensure compliance with the new preventative duty.

With content crafted by our leading employment lawyers, our respect@work e-learning training course can be used by employers to help their workforce understand the importance of their equal opportunities and anti-harassment policies and the implications of inappropriate behaviour at work. Engaging learners with real-life scenarios, this course reinforces good practice and the fundamental requirement for fairness, respect and consideration in the workplace. Watch our video for further information.

The Government’s progress in relation to its policy commitments regarding harassment in the workplace can be followed with our interactive tracker. 

See also the EHRC’s existing Employment Statutory Code of Practice, the updated Sexual harassment and harassment at work: technical guidance, the updated Employer 8-step guide to preventing sexual harassment in the workplace and its Draft Strategic Plan 2025 – 2028

How we can help

Our team of specialist lawyers have the experience and track record to help organisations at each stage of any diversity and inclusion strategy, including measures to address and prevent workplace harassment. As well as advising on the legal considerations, our team is regularly involved in conducting comprehensive risk assessments, preparing practical action plans, delivering bespoke training, supporting communications strategies, dealing with complaints and litigation, as well as assistance with shaping wider diversity and inclusion strategies.