Everyone should be able to go about their work without the fear of encountering unwanted conduct of a sexual nature. While sexual harassment at work has been prohibited by UK law for many decades, this kind of conduct and its damaging effects still continue, making the issue an ongoing concern for employers.
New legislation is set to place employers under a proactive duty to prevent sexual harassment at work, to ensure a safe and supportive working environment. The new law is expected to come into force in October 2024.
In this guide for employers, we look at the current law on sexual harassment in the workplace and update on the upcoming changes. We also share practical insights into what employers can do to prevent workplace sexual harassment, manage legal risk and avoid tribunal claims.
Section A: The Law on Sexual Harassment in the UK
Sexual harassment law in the UK is currently governed primarily by the Equality Act 2010 and the new Worker Protection (Amendment of Equality Act 2010) Act.
1. Equality Act 2010
The Equality Act Act prohibits unwanted conduct of a sexual nature where this has the purpose or effect of violating an individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive working environment for that person.
It is also unlawful to treat a person less favourably because they have either rejected or submitted to unwanted sexual conduct, or conduct related to sex or gender reassignment, that has had this same purpose or effect.
In deciding whether conduct has had the effect of violating an individual’s dignity or creating a harmful working environment for them, this will depend on the perception of the person subjected to the unwanted conduct and whether it is reasonable for the conduct to have had that effect. This means that sexual harassment can be unlawful, even if it is not intended. For example, it’s not uncommon for sexual innuendo to tip over into sexual harassment or for flirting to cross the line from being ‘a bit of fun’ to unwelcome conduct of a sexual nature.
2. Worker Protection (Amendment of Equality Act 2010) Act
The Worker Protection (Amendment of Equality Act 2010) Act received Royal Assent in October 2023, and is due to take effect 26 October 2024.
Under the new regulations, employers will have a proactive duty to take ‘reasonable steps’ to prevent sexual harassment of their employees. This includes implementing policies, providing training, and addressing complaints promptly and effectively.
The legislation effectively reformulates the previous legal duty on employers —under which an employer is liable only if an incident occurs and they’ve failed to take all reasonable steps to prevent this — shifting the point of liability to emphasise the importance of taking preventative steps before an event occurs. In this way, an employer may be held to account through strategic enforcement action by the Equality and Human Rights Commission for failing to take action without the need for an incident to have taken place.
The Act also provides a broader definition of sexual harassment, to encompasses unwanted conduct of a sexual nature, including but not limited to unwanted physical contact, verbal harassment and jokes, visual harassment (e.g., staring, displaying offensive materials), and creating a hostile working environment through these behaviours
The Act also specifies that employees have the right to report harassment without fear of detriment. Employers must provide clear reporting channels and protect employees from victimisation.
While the Act focuses on employer accountability, it also encourages a cultural shift within workplaces. Promoting respectful behavior and challenging inappropriate conduct is crucial for creating harassment-free environments.
Failure to comply with the duty to prevent can lead to legal action. The Act introduces a compensation uplift of up to 25% for successful sexual harassment claims, potentially increasing financial repercussions for negligent employers.
The ECHR is expected to issue updated guidance in advance of the new law taking effect, which employers should review and take account of to in preparation for the change in rules to avoid non-compliance and potentially costly tribunal claims.
Section B: Examples of Sexual Harassment at Work
Examples of sexual harassment at work can include, but are not limited to:
a. Gesturing or making sexual remarks about someone’s physique, clothing or appearance
b. Asking questions about someone’s sex life or discussing sexual relations
c. Telling sexually offensive jokes or making jokes about someone’s sex or sexual orientation
d. Displaying or sharing pornographic images or other sexual content
e. Touching someone against their will or making unwelcome sexual advances
f. Requesting sexual favours and various forms of sexual assault.
Sexual harassment can happen face-to-face, over the telephone, by email, via online messaging tools or on social media. The prevalence of working from home or hydrid working hasn’t necessarily limited the incidence of sexual harassment. This can still take place, whether at the office or at home. The harassment might arise from a single incident or a persistent pattern of behaviour, and can often be behaviour that’s not always obvious.
This type of behaviour, although predominantly affecting women in the workplace, can also impact male, non-binary or gender fluid employees. Sexual harassment can be committed by anyone of the same sex, a different sex or anyone of any gender identity or sexual orientation. This could be, for example, a co-worker, a line manager or anyone that an employee comes into contact with because of their job, such as a customer, client or member of the public.
Section C: Employee Rights & Protections Against Sexual Harassment at Work
By law, employees have the right not to be sexually harassed in the workplace, or treated less favourably because they’ve been subjected to sexual harassment, or harassment related to sex or gender reassignment, and have either submitted to or rejected this unwanted conduct.
The statutory protection against sexual harassment in the workplace set out under the 2010 Act applies equally to individuals who have an employment contract, an apprenticeship contract or a contract to personally do work. This includes workers, contractors, certain self-employed people and job applicants. The workplace protections also apply to a variety of wider working relationships beyond employment, such as partners, public office-holders and those seeking or undertaking vocational training.
In circumstances where a protected individual has experienced unwanted conduct of a sexual nature, or less favourable treatment because of how they’ve responded to any harassment, a claim can be made to an employment tribunal. Even where the sexual harassment is not directed at a particular individual, but they’ve witnessed this type of behaviour taking place at work, and because of what they’ve seen this has violated their dignity or harmed their working environment, a tribunal claim can still be made.
Additionally, a protected individual who has experienced or witnessed sexual harassment will be afforded protection from victimisation. This is where a person is treated unfairly or subjected to a detriment at work because, for example, they’ve complained about unwanted conduct of a sexual nature, or instigated or threatened legal proceedings because of this.
Section D: Employer Obligations to Prevent Sexual Harassment
Sexual harassment at work is against the law in the UK, where employers can be legally held responsible for the sexual harassment of their staff if the employer did not take steps to prevent the harassment from taking place. This is because employers may be vicariously liable for unlawful acts carried out by their employees in the course of their employment.
The liability for sexual harassment applies regardless of whether or not the employer has approved, or is even aware of, their employees’ actions, although liability can be avoided provided the employer can show all reasonable steps were taken to prevent the perpetrator from acting unlawfully. Essentially, this means that employers must do all they reasonably can to protect staff from sexual harassment and take proactive steps to prevent it from happening.
Equally, employers have a statutory duty of care to ensure the wellbeing of their employees. If an employer fails in this duty, this could lead to a serious breach of the implied term of mutual trust and confidence.
If an employee feels they have no other choice but to resign because of this, the employer could face a claim for constructive dismissal on grounds of breach of contract. This means that the employer must also take steps to prevent unwanted conduct of a sexual nature from anyone the employee comes into contact with because of their job.
Section E: Best Practice for Employers
The fact that sexual harassment remains prevalent in UK workplaces is often either because employers are unaware of their legal responsibility under UK sexual harassment law or they don’t know how to effectively prevent this form of unlawful conduct.
The following are best practices to help manage sexual harassment complaints and minimise the risk of unwanted conduct of a sexual nature in the workplace:
1. Comply with the new law
In preparation for the new law taking effect in October 2024, it is advisable to take steps to demonstrate that you are actively working to prevent sexual harassment. This preparation will also support your efforts to show that you have taken all reasonable steps to prevent any form of harassment, which is beneficial for your Diversity, Equity, and Inclusion (DE&I) initiatives and in defending against potential claims.
Practical steps include creating or updating reporting registers for harassment complaints, revising anti-harassment policies to focus on inclusion, and delivering current, situational training to staff. It’s essential that this training goes beyond mere compliance and genuinely equips employees to handle harassment, including providing bystanders with the tools to intervene safely. Additionally, conducting targeted risk assessments and ensuring effective reporting and investigation mechanisms are in place is crucial. You should also consider visible measures for third-party interactions, such as signage discouraging harassment, and consult with employee representative groups on proposed actions.
2. Minimising sexual harassment risks
By taking positive and proactive steps to make the workplace safer for everyone, this can help to prevent sexual harassment from happening in the first place. Putting in place an effective anti-harassment policy and providing sexual harassment training are both key preventative steps that can be taken by an employer to help minimise the incidence of sexual harassment.
3. Sexual harassment policy
One of the most important steps in the effective prevention of sexual harassment in the workplace is to foster a working environment in which staff feel able to make complaints without fear of reprisals. Employees should feel confident that any complaint will be taken seriously and will not, of itself, lead to unfair treatment at work. Victims of sexual harassment or anyone involved in a sexual harassment complaint should also feel fully supported.
By putting in place a written anti-harassment policy — setting out the organisation’s commitment to deal with sexual harassment, examples of what constitutes unlawful conduct, the procedure for making and managing a complaint, plus the potential consequences for the perpetrator — this will encourage victims to speak out.
The threat of dismissal and criminal prosecution will also help to reduce the incidence of sexual harassment. In this way, potential perpetrators of unwanted sexual conduct will be aware that any allegations will be thoroughly investigated and action taken, where employers should aim to have a zero tolerance culture of sexual harassment in the workplace.
4. Managing sexual harassment complaints
The way in which a sexual harassment complaint is handled will depend on the nature and severity of the complaint. For very minor incidents, such as friendly banter, an informal discussion with the person responsible can often lead to a greater understanding and an agreement that the behaviour will cease. However, given the inherently serious nature of sexual harassment, formal grievance and disciplinary procedures will often be necessary.
All complaints of sexual harassment must be taken seriously. In all cases, the employer should fully investigate the complaint thoroughly, where the investigation must be handled in a way that’s fair and sensitive to everyone involved, respecting the confidentiality of all parties.
Where a formal approach is necessary, the employer must follow a full and fair procedure for handling complaints in accordance with the Acas Code of Practice on disciplinary and grievance procedures, taking action where needed. The employer must also take all reasonable steps to prevent the sexual harassment from happening again.
The employer should keep an accurate written record of the allegations made, the investigation undertaken and what action was taken in response. In this way, the employer can show that they’ve discharged their statutory duty to ensure the wellbeing of their staff, and followed a fair procedure where formal disciplinary action is taken against the accused.
5. Sexual harassment training
Any person who sexually harasses someone at work is responsible for their own actions. In some cases this could result in disciplinary action and even dismissal. It could also lead to criminal prosecution. The provision of regular training on sexual harassment can go a long way to educating staff as to their own individual and collective responsibilities around sexual harassment. This can include the potential consequences of their own actions, the impact on the victim, as well as the impact on the wider workforce.
Where sexual harassment at work goes unchecked or is badly handled, this can create serious problems for the business that can impact everyone, including conflict in the workplace and poor working relationships, reduced individual and team morale, reduced employee engagement, increased absenteeism and the loss of valuable members of staff. It’s important that staff are encouraged to be both individually and collectively responsible for preventing sexual harassment, and for providing a safe and supportive environment for others.
Equally, employers should ensure that those responsible for managing complaints are trained in how best to handle these. Given the serious and sensitive nature of sexual harassment complaints, allegations must be handled promptly, fairly, objectively and confidentially. The line manager, supervisor or any other person designated to deal with a complaint, must fully understand what constitutes unlawful conduct, what steps must be taken to address this and what further steps can be taken to prevent any recurrence.
Section F: Summary
Sexual harassment is unwelcome behaviour of a sexual nature that violates an individual’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment. It is recognised as a serious issue under UK law, particularly under the Equality Act 2010, which protects individuals from such conduct in the workplace.
For UK employers, the key risks associated with sexual harassment include potential legal action, significant damage to the company’s reputation, and a negative impact on employee morale and productivity. Employers must be vigilant in recognising and addressing behaviours that may constitute sexual harassment, even if they appear to be minor or isolated incidents.
Employers are legally required to take proactive measures to prevent sexual harassment, such as implementing comprehensive anti-harassment policies, providing regular training to staff, and establishing clear procedures for reporting and addressing complaints. It is important to ensure that these measures are not just in place but are actively maintained, up-to-date, and effectively communicated to all employees. Employers should also be aware of the potential impact of third-party harassment and take steps to mitigate this risk, particularly in environments where employees interact with customers or clients.
Section G: Need Assistance?
The planned changes in sexual harassment law will increase pressure on employers to implement robust measures to prevent sexual harassment, including the provision of an anti-harassment policy and staff training. Expert legal advice should be sought to prepare for the changes and avoid falling foul of the new rules.
DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination. Working closely with our specialists in HR, we can advise on steps to prevent discrimination and sexual harassment in your organisation, while minimising the legal risk of legal claims. For help and advice, speak to our experts.
Section H: Sexual Harassment FAQs
Can an employee with less than 2 years’ service sue for sexual harassment?
There is no qualifying continuous service requirement to sue for sexual harassment. Under the Equality Act 2010, an employee has the right not to be harassed from day one of employment.
What are the types of sexual harassment?
Sexual harassment can come in various forms, including gesturing or making sexual remarks, the use of sexual jokes or innuendo, touching someone against their will, making unwelcome sexual advances, requesting sexual favours and various forms of sexual assault.
How do you address sexual harassment at work?
All complaints of sexual harassment at work must be taken seriously by employers, and handled fairly and sensitively. The employer should follow any procedure set out in the organisation’s anti-harassment policy, and take action where necessary.
What constitutes sexual harassment in the workplace?
Sexual harassment is any unwelcome behaviour of a sexual nature that violates an individual’s dignity or creates an environment that is intimidating, hostile, degrading, humiliating, or offensive. This can include verbal remarks, physical actions, or even non-verbal gestures.
Are employers legally obligated to prevent sexual harassment?
Under UK law, employers have a duty to take reasonable steps to prevent sexual harassment in the workplace. Failing to do so can result in legal action and significant penalties.
What steps should I take if an employee reports sexual harassment?
When an employee reports sexual harassment, it is essential to take the complaint seriously and act promptly. Employers should ensure the complaint is thoroughly investigated, maintain confidentiality, and provide support to the victim throughout the process.
Can sexual harassment claims affect my business if I don’t take action?
Ignoring sexual harassment claims can lead to costly legal disputes, damage to your company’s reputation, and a decline in employee morale and productivity. Taking proactive measures is not only a legal requirement but also vital for maintaining a positive workplace environment.
How can I prevent sexual harassment in my organisation?
Preventing sexual harassment involves implementing comprehensive anti-harassment policies, providing regular training for all employees, establishing clear reporting mechanisms, and ensuring that all complaints are taken seriously and addressed promptly. It is also crucial to foster a workplace culture of respect and inclusion.
Does the law cover harassment by third parties, such as customers or clients?
While the new law does not specifically cover harassment by third parties, employers still have a responsibility to protect their employees from harassment in the workplace, including from customers or clients. Failing to address such behaviour can still lead to legal liabilities and harm to the business’s reputation.
What should I include in my anti-harassment policy?
An effective anti-harassment policy should clearly define what constitutes harassment, outline the procedures for reporting incidents, detail the process for investigating complaints, and specify the consequences for those found guilty of harassment. The policy should also emphasise the company’s commitment to maintaining a respectful and inclusive work environment.
Section I: Glossary
| Term | Definition |
|---|---|
| Sexual Harassment | Unwanted conduct of a sexual nature that violates an individual’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment. |
| Equality Act 2010 | A UK law that consolidates and strengthens previous anti-discrimination laws, providing protection against discrimination, including sexual harassment, in the workplace. |
| Reasonable Steps | Actions that employers are required to take to prevent sexual harassment in the workplace, such as implementing policies, training, and providing reporting mechanisms. |
| Anti-Harassment Policy | A set of guidelines and procedures established by an employer to prevent and address harassment, including sexual harassment, in the workplace. |
| Reporting Mechanisms | Systems and processes put in place by employers to allow employees to report incidents of harassment safely and confidentially. |
| Employment Tribunal | A judicial body in the UK that resolves disputes between employers and employees, including cases of sexual harassment. |
| Third-Party Harassment | Harassment experienced by employees from individuals who are not their direct employers, such as customers, clients, or contractors. |
| Bystander Intervention | Actions taken by individuals who witness harassment to safely intervene and support the victim, helping to prevent or stop the inappropriate behaviour. |
| Vicarious Liability | A legal principle where an employer can be held responsible for the actions of its employees if they fail to take reasonable steps to prevent unlawful behaviour. |
| EHRC (Equality and Human Rights Commission) | The UK’s national equality body responsible for enforcing laws and promoting equality, including providing guidance on preventing sexual harassment. |
Section J: Additional Resources
ACAS (Advisory, Conciliation and Arbitration Service)
https://www.acas.org.uk
ACAS offers free and impartial advice to employers and employees on workplace relations, including guidance on preventing and addressing sexual harassment in the workplace.
Equality and Human Rights Commission (EHRC)
https://www.equalityhumanrights.com
The EHRC provides comprehensive information on UK equality laws and offers resources and guidance on preventing sexual harassment and promoting equality in the workplace.
GOV.UK – Sexual Harassment at Work
https://www.gov.uk/sexual-harassment
The UK government’s official site offers detailed information on the legal obligations of employers and the rights of employees regarding sexual harassment at work.
CIPD (Chartered Institute of Personnel and Development)
https://www.cipd.co.uk
CIPD provides resources and professional guidance for HR professionals, including best practices for handling sexual harassment and promoting inclusive workplace cultures.
Mind – Workplace Mental Health Support
https://www.mind.org.uk
Mind offers support and resources for mental health in the workplace, including guidance on supporting employees who have experienced sexual harassment.
The Law Society – Employment Law Resources
https://www.lawsociety.org.uk
The Law Society offers legal resources and expert advice on employment law, including how to address and prevent sexual harassment in the workplace.
TUC (Trades Union Congress)
https://www.tuc.org.uk
The TUC provides advice and support for workers, including guidance on rights related to sexual harassment and how to handle such issues in the workplace.
Victim Support – Harassment Support Services
https://www.victimsupport.org.uk
Victim Support offers confidential help and advice for individuals who have experienced harassment, including workplace sexual harassment, and provides support throughout the legal process.
EHRC Guidance on Harassment and Bullying
https://www.equalityhumanrights.com/en/advice-and-guidance/sexual-harassment
This page provides detailed guidance on preventing and addressing sexual harassment and bullying in the workplace, with practical advice for employers.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
