Significant changes to UK employment law will be implemented in October 2024, specifically addressing sexual harassment in the workplace. These changes, introduced under the Worker Protection (Amendment of Equality Act 2010) Act 2023, aim to create a safer and more respectful work environment by imposing a new duty on employers to prevent sexual harassment. This article outlines the key aspects of the upcoming legal changes and what they mean for both employees and employers.

Employers’ Current Obligations

Employers are required to ensure that their employees are not subjected to sexual harassment or treated unfavourably for either rejecting or submitting to behaviour of a sexual nature.

Under current law, employers can be held vicariously liable for their employee’s actions if those actions occur during the course of employment. However, if an employer faces a sexual harassment claim, they may have a defence if they can prove that they took “all reasonable steps” to prevent such harassment.

Currently, employers typically need to demonstrate the preventive measures they implemented only if they intend to use the “all reasonable steps” defence. In many cases, however, employers choose not to pursue this defence—especially if the harassment appears to be an isolated incident—opting instead to support and uphold their employees’ actions. Consequently, some argue that the current system does not provide sufficient motivation for employers to proactively implement strong preventive measures.

New Duty to Prevent Sexual Harassment

Starting on October 26, 2024, employers in the UK will be legally required to take reasonable steps to prevent sexual harassment in the workplace. This new duty specifically targets sexual harassment, defined as unwanted conduct of a sexual nature. This proactive duty requires employers to anticipate potential situations where employees might be at risk of harassment and take steps to prevent such incidents from occurring.

This duty applies not only to the workplace itself but also to work-related events such as conferences, social gatherings, or business trips. The goal is to ensure that employers are vigilant in protecting their employees from sexual harassment in any environment connected to their employment.

What This Means for Employers

The introduction of these new legal requirements marks a shift in how sexual harassment is addressed in the workplace. Employers must now take a more proactive approach, ensuring they have robust policies and procedures in place to prevent harassment before it occurs. This includes:

• Implementing Comprehensive Training: Regularly educating all employees on sexual harassment, appropriate workplace behaviour, and the new legal requirements.
• Updating Policies: Ensuring that anti-harassment policies are current, clearly communicated, and easily accessible to all employees.
• Conducting Risk Assessments: Proactively identifying situations where harassment could occur and taking steps to mitigate these risks.
• Responding to Incidents: Handling any allegations of harassment promptly and in accordance with the law, ensuring that employees feel supported and protected.

Non-Compliance Compensation Changes

One of the most significant aspects of the new law is the introduction of a potential 25% uplift in compensation. If an employer fails to comply with the new duty and an employee successfully beings a harassment claim, the employment tribunal will consider whether the employer met its obligations under s. 40A. If it finds that the employer did not take reasonable steps to prevent harassment, the tribunal has the discretion to increase the compensation awarded to the employee by up to 25%.

Harassment by Third Parties

Initially, the legislation proposed reintroducing employer liability for harassment of employees by third parties, such as customers or clients. However, this provision was ultimately removed during the legislative process. Despite this, the Equality and Human Rights Commission (EHRC) has updated its guidance to suggest that the duty to prevent harassment should include actions to protect workers from third-party harassment. While there is no specific legal requirement to prevent third-party harassment, employers are still advised to take reasonable steps to protect their employees in such situations.

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