Anti-harassment

The Equality Act 2010 defines:

• Harassment as unwanted conduct related to a protected characteristic (such as age, disability, race and so on) that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment
• Sexual harassment is defined separately as unwanted conduct of a sexual nature which has the same purpose or effect.

Employers are currently liable if one of their staff harasses a colleague. There is a defence if the employer can show it took “all reasonable steps” to prevent such actions by the employee. However, this is frequently not relied upon as it’s a very high threshold to meet and, practically, employers often lack evidence of their actions. This may start to change now there is a new duty to prevent sexual harassment.

From 26 October 2024, employers are required to take “reasonable steps” to prevent sexual harassment. This is an anticipatory duty – unique to sexual harassment – which requires employers to take action to prevent sexual harassment before it happens.

The Equality and Human Rights Commission (EHRC) takes the view that the anticipatory duty covers sexual harassment from customers, clients and other third parties, and that it can take enforcement action on that basis. At the moment, however, workers cannot bring a tribunal claim against their employer specifically for harassment by third parties. A previous law which made employers liable was repealed in October 2013.

Protections against harassment have been increasing over time, even before the Employment Rights Act (ERA) was announced. However, the existing protection is set to be extended even further.

Current position

In most cases, employment law rights must be enforced by the worker themselves and a worker has three months from the act complained of to lodge a tribunal claim.

The changes

Impact

The requirement for employers to take “all reasonable steps” is a high and onerous threshold to meet. Similarly, the reintroduction of liability for third party harassment is significant.

Not only will it be harder to successfully defend such allegations, but if founded, employers will face an increased penalty given the potential for awards to be increased by 25%, along with the risk of an investigation by the EHRC.

Further regulations may be implemented to clarify what “all reasonable steps” will include.

The government’s factsheet confirms that:

• The Act will introduce a power to allow further regulations to specify the steps an employer must take to meet the “all reasonable steps” requirement
• A non-exhaustive list of obligations will be set out which employers must follow, “whilst also taking all other preventative steps” that are reasonable in the circumstances
• This may include carrying out assessments, publishing plans, reporting and handling complaints.

The government has stated that businesses will be provided with clear guidance on the measures.

Timeline

1. Stronger preventative duty to prevent sexual harassment – proposal to be implemented in October 2026 (although there are some conflicting timescale details in the roadmap)
2. Liability for third party harassment – proposal to be implemented in October 2026
3. Sexual harassment disclosures to be added to whistleblowing lists – proposal to be implemented in April 2026.

Employer actions now

• Train all levels of your business, particularly managers, to comply with the new requirements. Find out more about our anti-harassment training.
• Review all current policies and procedures and ensure they are up to date with the October 2024 amendments
• Carry out risk assessments to identify particular risks of harassment across all areas of your business. Take steps to address those risks
• Put in place annual harassment training (at a minimum) to ensure all staff are aware of expected behaviours and the action that will be taken if they fail to meet them
• Take prompt action to investigate sexual harassment concerns if raised
• Employers in the retail and hospitality sectors will face the biggest impact given the public interaction
• While we don’t yet have clarity on exactly what “all reasonable steps” includes, we anticipate the new test will likely mirror the employer’s defence. Consider:
  • Following the eight-step guide published by the EHCR
  • Reviewing contracts with third parties and suppliers
  • Ensuring supply chains are taking similar risk assessments and preventative measures, particularly if their staff will be working on your premises.