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A new duty on employers to take steps to prevent sexual harassment of their employees will come into force in 2024.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 amends the Equality Act 2010 to introduce a new duty on employers to take reasonable steps to prevent sexual harassment of their employees (s. 40A). It also gives tribunals the power to increase compensation by up to 25% where an employer is found to have breached this new duty (which will sit alongside employees’ existing protections from sexual harassment in the 2010 Act). The new law received Royal Assent on 26 October 2023 and comes into force one year after this.

The new duty is to take reasonable steps to prevent sexual harassment of employees in the course of their employment. This applies to sexual harassment as defined in the Equality Act, i.e. unwanted conduct of a sexual nature. The Equality Act already provides a defence to a harassment claim if the employer can show they had taken all reasonable steps to prevent it from happening. This means it is advisable to take such steps, but there is no actual requirement to do so. The new law goes further by placing a separate legal obligation on all employers to take proactive measures to prevent sexual harassment. The new duty only applies to sexual harassment. It does not apply to harassment based on other protected characteristics such as race, age, sexual orientation or belief. It also does not apply to harassment which is related to sex but is not conduct of a sexual nature. The Act does not contain any definition of what ‘reasonable steps’ actually are. However the Equality and Human Rights Commission (EHRC) is working on a new statutory code which is likely to contain appropriate guidance.

The original drafting of the Bill stipulated that an employer would have to take ‘all’ reasonable steps. However during the Bill’s passage through the House of Lords the word ‘all’ was dropped, arguably a lower threshold. Also dropped during its Parliamentary passage was the re-introduction of an employer’s liability for the harassment of employees by third parties. This would have reinstated employers’ potential liability for harassment where its employees are subject to harassment by a third party, even a third party over whom the employer does not have direct control. The decision to abandon this provision reportedly came after opposition from Conservative peers (a concern over its effects on free speech) and a concern that if a compromise was not reached, the whole Bill would run out of Parliamentary time.

The new legislation does not give employees a freestanding right to bring a s. 40A claim. Only the EHRC can do this. However, where an employee succeeds on a traditional sexual harassment claim, the tribunal will need to consider whether the new obligation has been satisfied. If it is so satisfied, it will have the discretion to order the employer to pay a compensation uplift of no more than 25%, reflective of the extent to which the employer has failed to comply with its duty. Although this is only triggered if there has been sexual harassment, the uplift itself will apply to all of the compensation that has been awarded for any type of harassment.