Call of duty: Sexual harassment in the workplace

From 26 October 2024, employers have a legal duty to take reasonable steps to prevent sexual harassment of their employees. 

This duty will be introduced by The Worker Protection (Amendment of Equality Act 2010) Act 2023 and represents the most significant legislative step in attempting to safeguard employees from sexual harassment in the workplace in over a decade.

This new duty is important and particularly relevant as it is clear from recent news items, and claims that Leigh Day is bringing, that sexual harassment has been potentially rife in some workplaces, such as McDonald’s and Harrods.

The new act will also give employment tribunals the power to increase discrimination compensation by up to 25 per cent if a sexual harassment claim is successful and an employer is found to have breached the new duty to prevent sexual harassment. This should provide incentive to employers to comply with the new duty and to take sexual harassment seriously, rather than dismissing sexual harassment as ‘banter’ or of little importance. Sexual harassment is unlawful and is not something you should have to experience or ‘put up with’ in the workplace.

What are ‘reasonable steps’?

Last month, the Equality and Human Rights Commission (EHRC) updated their workplace sexual harassment guidance ahead of the new duty coming into effect.

The guidance suggests that, to comply with the new duty, employers should:

• Develop and widely communicate a robust anti-harassment policy, which includes third party sexual harassment.
• Undertake regular risk assessments to identify where sexual harassment may occur and the steps that will be taken to prevent it.
• Be proactively aware of what is happening in the workplace and any warning signs, by engaging with staff through 1-2-1s, surveys and exit interviews.
• Monitor and evaluate the effectiveness of actions.

However, the extent of ‘reasonable steps’ in not yet clear. For example, a brief or undetailed risk assessment is unlikely to be sufficient prevention and nor will a one-off risk assessment or anti-harassment policy.  

Employers, who are already potentially liable for the conduct of employee harassers, should already be acting on any complaints or grievances, brought to their intention informally or formally, to ensure that sexual harassment is prevented. This new duty means that they now should do more than just record that complaint and act on it specifically. Now it is a legal requirement that they actively take steps to prevent it occurring in the first place. This would usually be through the implementation of further training and other preventative measures. Where that hasn’t happened, in circumstances where a claim is brought the additional damages risk is real and could be substantial.

Your employer should therefore take as many steps as possible to be seen to be actively preventing sexual harassment in the workplace.  

How do I know if I am being sexually harassed?

Sexual harassment can affect any sex and someone can be harassed by a person of the same, or any, sex. By way of example, sexual harassers can be female and victims can be male.

Legally, sexual harassment is defined in the Equality Act 2010 as:

When a person (the harasser) engages in unwanted conduct of a sexual nature, and that conduct has the purpose or effect of either violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim.

Sexual harassment can include:

• Sexual comments or jokes.
• Displaying sexually graphic pictures, posters or photographs.
• Suggestive looks, staring or leering.
• Propositions and sexual advances.
• Making promises in return for sexual favours.
• Sexual gestures.
• Intrusive questions about a person’s private or sex life or a person discussing their own sex life.
• Sexual posts or contact on social media.
• Spreading sexual rumours about a person.
• Sending sexually explicit emails or text messages.
• Unwelcome touching, hugging, massaging or kissing.

What is less well known is that the same provisions in the existing 2010 act also protect a person who suffers broader less favourable treatment because of that fact that they have either rejected or submitted to a harasser’s unwanted sexual conduct. Whilst the employer duty in the new Act does not directly impact this, it is important to know about this extra level of protection already available under the law.  

What should I do if I am sexually harassed at work?

In the first instance you should formally raise the issue with a manager or your HR department. If you are unsure who to speak to, there should be policies in place that set this out. You may also wish to take legal advice if you have any concerns about raising a complaint. We know it is often not easy you approach an employer about sexual harassment, especially if the person harassing you is in a position of power.  

If you think you are being sexually harassed, or mistreated because you rejected or submitted to harassment, you should seek legal advice as you may be able to bring a legal claim against both the harasser and your employer.  

It is important to note that there are very short, strict time limits to bring a legal claim in relation to sexual harassment at work so you should seek legal advice as soon as possible.

If you feel unsafe, you may also want to consider contacting the police.

How can Leigh Day help me?

You can contact Leigh Day’s employment team and/or the sexual abuse team if you think you may want to bring a legal claim.  

The employment team has a number of lawyers who have extensive experience of assisting with sexual harassment cases and many of us have provided assistance to charitable organisations who assist with sexual harassment related issues in the workplace.

The abuse team brings claims relating to sexual abuse and sexual violence, and those claims are not limited to experiences in the workplace.

Will there be further changes to the law?

The current Labour government has proposed that the new duty be strengthened to require employers to take all reasonable steps to prevent sexual harassment of employees, which may place a higher burden on employers to ensure that it has done all that it can reasonably do to protect employees.  

Further, the new law proposed will seek to protect employees from being harassed by a third party during the course of their work, and requires an employer to take all reasonable steps to prevent third party harassment. Third party harassment refers to customers, clients, non-employees who may have contact with an employee at work. The new laws are currently working their way through Parliament.  

Where can I find further information?

Some useful resources: 

• The EHRC website
• The ACAS website
• The Rights of Women website