Updates to sexual harassment laws – is your business ready?

These amendments come at a time when high-profile cases of sexual misconduct in industries ranging from media to business are making headlines. While sexual harassment claims are not a new legal challenge for employers, this shift introduces new obligations that businesses need to understand—and comply with—sooner rather than later.

Until now, the legal framework under the Equality Act 2010 allowed employers to defend themselves against sexual harassment claims by demonstrating that they had taken reasonable steps to prevent such incidents. However, there was no explicit requirement for employers to be proactive in preventing harassment. The upcoming Worker Protection (Amendment of Equality Act 2010) Act 2023 changes that by introducing a positive duty for businesses to actively work toward preventing sexual harassment before it happens.

These changes could potentially affect every business across the UK, regardless of size or industry, and employers must take immediate steps to prepare. Here, Sara Patel from Banner Jones’ Employment Team explains the changes coming into force, and what they mean for businesses and their employees.

What Is Sexual Harassment?

“Firstly, it’s important to define what sexual harassment is,” Sara explains. “Under the legislation, it is any unwanted behaviour of a sexual nature that violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.

“To qualify as sexual harassment, the behaviour does not need to be intentional—it is enough that it made the individual feel uncomfortable or unsafe. This means that employers have a responsibility to address not only overt harassment, but also subtle or unintended actions that could still have a damaging effect.

“The Equality Act 2010 already provides protections against sexual harassment for employees, workers, contractors, self-employed individuals hired to personally do the work, and even job applicants. But the Worker Protection Act adds a new layer to an employer’s obligations.”

The New Proactive Duty: What It Means for Employers

Sara says that under the new rules, rather than simply responding to claims of harassment after the fact, businesses must now take reasonable steps to prevent sexual harassment from occurring in the first place.

“This obligation to take proactive measures is unique to sexual harassment and does not extend to other forms of workplace harassment, such as that based on race, religion, or disability,” she explains.

“These changes come into force later this month, so it’s vital that businesses take steps to ensure that they are compliant. This includes demonstrating that they have thought critically about where sexual harassment might arise and have actively implemented measures to prevent it.”

Steps to Prevent Sexual Harassment

To ensure compliance with the new legal duty, Sara says that businesses need to adopt a comprehensive approach, which means doing more than simply viewing new policies and procedures as a mere “tick-box” exercise.

“Instead, they should build robust systems and foster a workplace culture that actively prevents sexual harassment.”

Sara adds that since the changes were first announced they have been advising their clients to put in place proactive measures. These include:

• Policies and Procedures: Every company should have clear, written policies that define what constitutes sexual harassment, provide examples, and outline the process for reporting incidents. While having a policy is essential, it alone will not suffice. Sara also suggests considering a "Relationships at Work" policy, as personal relationships between managers and subordinates can often give rise to harassment claims.

• Training and Development: Regular, mandatory, training for all employees is key. This ensures that everyone understands what sexual harassment is and how to report it. Line managers, in particular, need focused training to equip them in addressing incidences of sexual harassment quickly and appropriately.

• Grievance and Disciplinary Procedures: Employers must ensure there is a clear, accessible path for employees to report incidents of sexual harassment. Complaints must be investigated thoroughly and in a timely manner, with appropriate actions taken to resolve the situation and prevent future incidents.

• Cultural Change: Leadership plays a critical role in setting the tone for workplace behaviour. Executive teams should embody an employer’s values of dignity and respect, ensuring that these principles are visible throughout all levels of the organisation.

What Happens If Businesses Don’t Comply?

Although employees cannot bring standalone claims for an employer’s failure to meet the new proactive duty, failure to comply could have serious consequences, cautions Sara. If an Employment Tribunal finds that an employer has failed in their duty and a sexual harassment claim is upheld, the compensation awarded to the employee can be increased by up to 25%.

Moreover, the Equality and Human Rights Commission (EHRC) has the authority to take additional enforcement action against an employer. This could include requiring employers to create and adhere to an action plan for improvement, or, in extreme cases, imposing legally binding agreements or court orders on employers to enforce their compliance.

Sara also urges businesses to consider the wider implications of failing to take the new rules seriously. “Beyond the legal implications, the damage to a company’s reputation can be severe,” she explains.

“Publicised cases of harassment, like those at Harrods, have shown how toxic workplace cultures can lead to long-term financial and reputational harm. Businesses that fail to protect their employees risk losing not only valuable talent but also consumer trust.”

Whilst the Worker Protection Act is due to come into effect in just a matter of weeks, Sara says that there is still time for companies to take action to make sure that they are compliant.

“The changes are imminent, but an employment law specialist can still help to ensure that you have everything in place before the deadline. This includes drafting policies to help protect your business and delivering training to you and your staff.”