The new rules on preventing sexual harassment at work

Partner, Mark Landon recaps new rules on protecting staff from sexual harassment at work, and considers how Labour’s flagship employment legislation might take forward the law on this issue.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 (‘WPA’) finally came into force on 26 October 2024, exactly one year after it received Royal Assent.

The WPA inserts a new section 40A into The Equality Act 2010 which imposes a duty on employers to take reasonable steps to prevent the sexual harassment of their employees by both co-workers and by third parties. The new provisions provide that:

• An employer A must take reasonable steps to prevent the sexual harassment of employees of A in the course of their employment (the so called ‘preventative duty’);
• “Sexual harassment” means unwanted conduct of a sexual nature); and

Contravention of the preventative duty has two potential consequences:

• • First, the Equality & Human Rights Commission (but not an individual employee) can take enforcement action against an employer for failing to fulfil the preventative duty; and
  • Where an employee brings a successful employment tribunal claim for sexual harassment then the Tribunal must consider uplifting any compensation awarded by up to 25% to reflect the degree to which (if at all) the employer failed to fulfil the preventative duty.

In support of the WPA, and to reflect the new preventative duty, the Equalities & Human Rights Commission published an updated version of its Technical Guidance on Sexual Harassment and Harassment at Work in late September 2024 and Acas updated its guidance on sexual harassment on 21 October 2024. Both documents provide an invaluable source of legal and practical guidance for employers and employees alike, bringing together many of the key lessons from recent case law ‘under one roof’. The EHRC Technical Guidance in particular is a comprehensive resource which is divided into four chapters:

• Chapter 1 explains the three types of harassment that are outlawed under the Equality Act 2010;
• Chapter 2 explains what constitutes victimisation, explaining that the fear of victimisation is one of the biggest barriers to people reporting harassment at work - and that employers must factor this into their approach in order to fulfil their preventative duty;
• Chapter 3 explains an employer’s obligations and liabilities under The Equality Act 2010, including the pre-existing statutory defence for employers against allegations of vicarious liability when one employee discriminates against another, as well as the employer’s legal obligations as regards the new preventative duty; and
• Chapter 4 explains the practical steps which an employer should undertake both with regard to the pre-existing statutory defence and the new preventative duty.

Amongst other matters, the EHRC Technical Guidance emphasises that the preventative duty is an anticipatory duty: employers should not wait until a complaint of sexual harassment has been raised before they take any action but should instead anticipate scenarios when their workers may be subject to sexual harassment in the course of their employment and take action to prevent such harassment taking place. Furthermore, if sexual harassment has taken place then the preventative duty means that an employer should take action to stop it from happening again. (This is important: things will always go wrong from time to time and all too often employers fail to take on board any ‘bigger picture’ learning points from individual cases. Not only does this make no ethical and commercial sense but it could now undermine the other preventative measures that are implemented).

What does the WPA add to the pre-existing protection against sexual harassment under the Equality Act 2010?

In one sense the WPA should not make a material difference in terms of the protection for employees: responsible employers should have already been implementing appropriate measures to prevent the sexual harassment of their staff, either by a fellow employee or by a third party such as a supplier, customer or client. Indeed, prevention is the key element of an employer’s pre-existing statutory defence under section 109(4) of the Equality Act 2010, where it’s alleged that the employer is vicariously liable where one employee is discriminated against by another:

“…In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment, it is a defence for B to show that B took all reasonable steps to prevent A —

(a) from doing that thing, or

(b) from doing anything of that description…”

In practice, however, the WPA does enhance the existing protection for staff:

• It imposes an express preventative duty on employers, emphasising the need for employers to adopt a proactive approach to safeguarding staff against sexual harassment; and
• Whilst the Equality Act 2010 does not currently provide employees with protection against third party harassment, an employer will not fulfil the preventative duty if it does not take reasonable steps to provide such protection.

In addition, the new preventative duty under the WPA should have a beneficial ‘knock on’ effect as regards other forms of harassment and discrimination: a prudent employer would be wise to replicate the proactive measures which it implements to fulfil the preventative duty in respect of all forms of discrimination. Not only does this make ethical and commercial sense but a failure to do so will risk undermining the employer’s statutory defence to vicarious liability, should an employee suffer any other form of harassment or discrimination. For example, if an employee brings a tribunal claim for racial harassment against both the relevant co-worker and their employer, it will be difficult for the employer to claim that it had taken all reasonable steps to stop the racial harassment if in fact it had implemented various measures to prevent the sexual harassment of staff but had not replicated those preventative measures in respect of racial harassment.

What next? The impact of the Employment Rights Bill

To begin with, the Government’s Employment Rights Bill will be amending the new preventative duty at a future date (yet to be determined) so as to require employers to take all reasonable steps to prevent the sexual harassment of staff by co-workers and third parties. This will bring the threshold for fulfilling the preventative duty into line with the statutory defence threshold.

Secondly, the Employment Rights Bill will be reintroducing the right for employees to claim third party harassment against their employer, a right which was previously repealed back in 2013.

Finally, human nature is such that the EHRC are likely to be on the lookout for a high-profile target against which to take enforcement action for failing to fulfil the preventative duty. Whether the EHRC will allow a period of grace for the new duty to settle in, and how long that period of grace might be, is open to speculation.