Introduction
This how-to guide provides information and practical guidance about the duty on employers to prevent sexual harassment in the workplace. The duty was established by the Worker Protection (Amendment of Equality Act 2010) Act 2023, which came into effect on 26 October 2024. This how-to guide covers the law in England, Wales and Scotland (GB) and is aimed at in-house counsel, private practice lawyers and human resource professionals. It does not cover the law in Northern Ireland.
This how-to guide covers:
- Background to harassment under the Equality Act 2010
- The employer’s duty to take reasonable steps to prevent sexual harassment in the workplace
- Key actions employers should take to comply with the preventative duty
This guide can be read in conjunction with How-to guides: Overview of workplace discrimination and harassment law and How to investigate workplace harassment complaints.
Employers should be aware that the Employment Rights Bill 2024, introduced on 10 October 2024, aims to significantly enhance worker protections in the UK. Key provisions include granting day-one rights for unfair dismissal, paternity, parental, and bereavement leave, changes to sick pay and flexible working rights, protections against zero-hours contracts and restrictions on the use of ‘fire and rehire’ practices. New legislation will be introduced throughout 2025 and 2026. Further information can be found at UK Parliament: Employment rights bill and Employment Rights Bill: factsheets.
Section 1 - Background to harassment under the Equality Act 2010
The legal context for harassment is largely framed by the Equality Act 2010 (EqA). The EqA makes it unlawful to harass someone based on a protected characteristic or to sexually harass someone (see How-to guide: Overview of workplace discrimination and harassment law). For information about the nine protected characteristics specified in the EqA, see Quick view: Protected characteristics under the Equality Act 2010.
1.1 Harassment
Harassment, as defined by section 26(1) EqA, is unwanted conduct related to a relevant protected characteristic that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
1.2 Sexual harassment
Section 26(2) EqA separately defines sexual harassment as unwanted conduct of a sexual nature that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. The employer’s new duty to prevent sexual harassment applies only in relation to sexual harassment as defined by 26(2) EqA, and not to sex-based harassment (or harassment based on any other protected characteristic) defined under 26(1) EqA.
Example – the difference between sex-based harassment and sexual harassment
In Mr A Finn v The British Bung Manufacturing Company Ltd and Mr J King: 1803764/2021 the employment appeal tribunal (EAT) confirmed that calling a man bald could amount to sex-based harassment, on the basis that baldness is much more prevalent in men than women. By contrast, sexual harassment involves conduct of a sexual nature, such as sexual comments or jokes, propositions or sexual advances, or unwelcome touching. The conduct does not have to be sexually motivated to amount to sexual harassment but must be sexual in nature.
Prior to the 2023 Act, employers were not required to take positive action to prevent harassment in the workplace as the EqA was limited to establishing liability for employers whose employees (as defined by the EqA) suffered discrimination or harassment, either directly from the employer or through its other employees or agents (through the principle of vicarious liability). Note that employers do have an existing potential defence to discrimination and harassment claims involving vicarious liability if they can show that they took ‘all reasonable steps’ to prevent the discriminatory behaviour (section 109(4) EqA). The rationale for this principle is to encourage employers to actively promote non-discriminatory practices and environments in their workplaces.
Notwithstanding the reasonable steps defence outlined above, prior to the 2023 Act, workplace harassment under the EqA was largely a matter for individuals to raise when they considered harassment had occurred. The new duty to prevent sexual harassment takes employers into new territory by establishing a proactive duty for employers to take action.
Section 2 - The employer’s duty to take reasonable steps to prevent sexual harassment in the workplace
Following the amendment of the EqA by the 2023 Act, employers are now required to take reasonable steps to prevent sexual harassment in the workplace (the preventative duty), meaning that, for the first time, employers are required to take proactive measures to avoid individuals within their workforce being sexually harassed.
Key resources for employers on this topic include the Equality and Human Rights Commission Sexual harassment and harassment at work: technical guidance (Technical Guidance) and Acas Guidance Preventing sexual harassment.
In the Technical Guidance, the preventative duty is described as follows:
The preventative duty is an anticipatory duty. It is designed to transform workplace cultures by requiring employers to take positive and proactive reasonable steps to prevent sexual harassment of their workers. Employers should not wait until a complaint of sexual harassment has been raised before they take any action. The duty requires that employers should anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place. However, if sexual harassment has taken place, the preventative duty means an employer should take action to stop sexual harassment from happening again. If an employer fails to take reasonable steps to comply with the preventative duty, there are consequences.
2.1 Scope of the preventative duty
Employers must take reasonable steps to prevent sexual harassment of their employees by:
- their own staff; and
- third parties, such as clients and customers.
Note that the term ‘employee’ is broadly defined in the EqA. It includes workers, former workers, job applicants and agency workers. This guide uses the collective term ‘workers’ in line with the Equality and Human Rights Commission’s approach in its guidance (see below).
2.2 Enforcement and liability
The preventative duty does not create a new standalone claim, and employment tribunals therefore cannot consider standalone breaches of the preventive duty. In addition to the reputational damage and damage to workforce morale that results from allegations of sexual harassment, there are two potential consequences (set out below) for employers who fail to comply with the preventative duty.
2.2.1 Equality and Human Rights Commission enforcement action
Under section 40A(3) EqA, the Equality and Human Rights Commission (EHRC) is able to take enforcement action against non-compliant employers. Workers can report concerns about sexual harassment to the EHRC, which can take enforcement action against an employer, including:
- carrying out an investigation;
- issuing an unlawful act notice;
- entering into a formal agreement with an employer to prevent unlawful acts; and
- applying for an injunction if the EHRC considers the employer is about to commit an unlawful act.
See EHRC: Our enforcement powers for further details.
2.2.2 Employment tribunal compensation uplift
If an individual succeeds in an employment tribunal claim against an employer for sexual harassment and is awarded compensation, the employment tribunal must consider whether the employer has breached the preventative duty. If the tribunal determines that the preventative duty has been breached, an employment tribunal can increase compensation by up to 25% (section 124A EqA 2010).
Section 3 - Key actions employers should take to comply with the preventative duty
The table below sets out key actions employers should take to comply with the preventative duty. These actions are based on the information provided in Chapter 4 of the Technical Guidance. Employers should also note the following guidance from the EHRC:
. . . there is no prescribed minimum about what an employer can do to prevent harassment, including sexual harassment, and protect its workers. It is an objective test about what it is reasonable for the employer to do in the circumstances. This will vary from employer to employer depending on the size and nature of the employer, the resources available to it and the risk factors which need to be addressed within the particular employer or sector. Therefore, not every step set out in this chapter will be reasonable for every employer to take, nor should they be considered exhaustive. Employers should consider what steps they have taken to date and what further steps it is practicable for them to take.
| Step | Detail |
| Risk assessments and action plans | The EHRC recommends at paragraph 4.10 of the Technical Guidance that employers make an assessment of the risks and the control measures in place to minimise those risks. The EHRC guidance includes a substantial, non-exhaustive list of risk factors for employers to consider, which includes:
Employers should produce an action plan setting out what preventative steps they will take to address any identified risks. The EHRC recommends that employers consider publishing their action plan to workers and the public, for example on their website. Employers should review and update the risk assessment and any action plans regularly. |
| Policies and procedures | The EHRC recommends that:
The EHRC also provides detailed guidance on what an anti-harassment policy should include, at 4.18 of the Technical Guidance. |
| Raising awareness, engaging staff and detecting harassment | Employers should ensure that all workers are aware of their anti-harassment policy. The EHRC suggests that employers consider publishing their policy on their external-facing website, or otherwise making it freely available to all workers, including those who do not have access to internal systems (eg, if they are off work due to illness). The EHRC notes that it is not appropriate for workers to be required to ask a manager for a copy of a policy, or to access it in a public place such as a staffroom. Other EHRC recommendations include:
Regular 1-2-1s, staff surveys, open door policies and return to work meetings (eg, from sickness absence) are all important ways to engage with staff and actively detect harassment in the workplace. |
| Evaluating policies | The EHRC highlights the need for the effectiveness of policies to be evaluated. It suggests this is done by:
|
| Training | All workers should be provided with training on harassment, which should be refreshed regularly. Training should be tailored for the particular employer and audience. The EHRC notes that supervisors and managers may need additional guidance on what to do when they receive a report or complaint of harassment. |
| Addressing power imbalances | The EHRC states that harassment often takes place and goes unreported where there is a power imbalance in the workplace. Employers are encouraged to reduce power imbalances by, for example:
Detailed guidance on how to achieve these goals can be found at paragraph 4.49 of the Technical Guidance. |
| Dealing with complaints of harassment | Key components of being able to respond to harassment complaints include having:
For further information about dealing with harassment complaints see How-to guide: How to investigate workplace harassment complaints and paragraphs 4.50 to 4.89 of the Technical Guidance. Employers should also have mechanisms in place for dealing with harassment of their staff by third parties, such as customers or suppliers. |
| Monitoring and review | Preventing sexual harassment should not be considered a one-off exercise. The EHRC recommends that employers continue to review whether there are any further steps it is practicable for them to take, considering issues such as whether there have been any changes in the workplace or the workforce and the availability of new technology such as new reporting systems. |
Employers may also consider the eight steps set out in the less detailed EHRC Employer 8-step guide: Preventing sexual harassment at work and the information provided in the EHRC Preventing sexual harassment at work: checklist and action plan for employers.
This How-to guide was produced in partnership with Michael Salter of 42 Bedford Row.
Additional Resources
Equality and Human Rights Commission – Sexual harassment and harassment at work: technical guidance
Acas Guidance – Preventing sexual harassment
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