Protection from harassment

UK employment law reforms on the horizon

Requirement to take "all" reasonable steps to prevent sexual harassment

The requirement on employers to take reasonable steps to prevent sexual harassment will be amended to require employers to take "all" reasonable steps.  

Implementation Status (November 2024)

  • Part of the Employment Rights Bill.

  • Regulations will be made specifying steps and matters to consider for the purposes of taking "reasonable steps".

  • "The majority of reforms will take effect no earlier than 2026".

Action

  • A new duty to take reasonable steps to prevent sexual harassment came into force in October 2024. In light of this proposed "enhanced" right, employers should consider carefully their steps towards compliance which should put them in a good place when this extended obligation comes into force. This approach will need to be adapted in light of the regulations, which may include a requirement for large employers to publish action plans (see below).

  • The EHRC has recommended in the context of the current legal preventative duty that employers undertake a risk assessment. While there are no set criteria around this, the EHRC has suggested that the framework of a health and safety assessment may be appropriate.

  • Where any measures are considered appropriate in light of third-party risks, such as surveillance and/or other electronic monitoring (such as recording phone calls), ensure that these are conducted in accordance with existing legal and regulatory requirements.

  • Employers will also need to revisit policies on harassment and sexual harassment and ensure that managers and staff receive updated and refreshed training and that this is then rolled out on a regular basis.

  • Keep on top of EHRC guidance, changes to the EHRC Employment Code (which are anticipated) and any guidance from regulators, together with evolving case law in this area.   
In detail

  • The legal requirement for employer to take reasonable steps to prevent sexual harassment will be amended to require employers to take "all" reasonable steps.

  • Regulations will be made to specify the steps which an employer must take and the matters to which they must have regard for the purpose of meeting the obligation to take all reasonable steps to prevent sexual harassment – see below.

Impact

  • Since October 2024, employers have been under a statutory duty to take reasonable steps to prevent sexual harassment in the workplace. A proposal to make this current duty one of "all" reasonable steps was previously proposed but subsequently dropped.

  • One suggestion that arose following parliamentary debates on the use of the word "all" was to provide that an employer would not be considered to have failed to take all reasonable steps to prevent harassment of an employee by another employee or a third party, solely because it did not seek to prevent the expression of opinions of a political, moral, religious or social manner in conversations or speech in certain circumstances. It remains to be seen whether similar provisions will be inserted into the Employment Rights Bill as it passes through parliament.                                                                                                                                                             

Liability for third party harassment

Employers will be liable for third party harassment in relation to all applicable protected characteristics unless they have taken "all" reasonable steps to prevent that harassment.

Implementation Status (November 2024)

  • Part of the Employment Rights Bill.

  • Regulations will be made specifying steps and matters to have regard to for the purposes of taking "reasonable steps".

  • "The majority of reforms will take effect no earlier than 2026".

Action

  • This is significant. While many employers have been focusing on what reasonable steps are required to prevent a third party committing sexual harassment in the workplace in light of the new preventative duty (in force October 2024), this proposal would cover third party liability for harassment across all applicable protected characteristics.

  • Employees would be able to bring claims in the Employment Tribunal for breach of this new provision, in the same way as they can currently bring a claim for alleged harassment by a colleague. Where the allegation of third-party harassment relates to sexual harassment, employers may also face an uplift of 25% to any compensation award where the tribunal also considers that there has been a breach of the preventative duty.

  • To minimise risks, a formal risk assessment may be appropriate for assessing the wider risks of harassment (including third party harassment) across other protected characteristics. For sexual harassment, it will be important for employers to consider the regulations when they are produced on "reasonable steps".

  • Where measures such as surveillance and/or other electronic monitoring (such as recording phone calls) are identified to mitigate third party risks, ensure that these are conducted in accordance with existing legal and regulatory requirements.

  • Policies on harassment and sexual harassment will need to be revisited; ensure that managers and staff receive updated and refreshed training and that this is rolled out on a regular basis.

  • Keep on top of EHRC guidance, changes to the EHRC Employment Code (which are anticipated) and any guidance from regulators, together with evolving case law in this area. 

In detail

  • The proposed new test for liability for third party harassment mirrors the existing tests for harassment by an employer or work colleague and covers sexual harassment and the protected characteristics of age, disability, gender reassignment, race, religion or belief, sex or sexual orientation.

  • The Bill provides that an employer will have permitted a third party to harass one of its employees where the third party harasses the employee in the course of their employment; and the employer failed to take all reasonable steps to prevent the third party harassing the employee in the course of employment. A third party means a person other than the employer or one of its employees.

  • Regulations will be made to specify the steps which an employer must take and the matters to which they must have regard for the purpose of meeting the obligation to take all reasonable steps to prevent a third party sexually harassing an employee. However, they are likely to be relevant when considering reasonable steps relating to other protected characteristics.
Impact

  • Statutory provisions providing employer liability for third party harassment under the Equality Act 2010 were repealed in 2013 (the test was different to the one proposed).

  • We may see more Employment Tribunal claims. Employers should also be aware that for sexual harassment allegations, a successful claim could lead to an uplift of up to 25% in any compensation award where a tribunal also considers that there has been a breach of the preventative duty. 

  • Employers will need to consider carefully the contact their staff have with third parties – whether it be in the course of their day to day duties or at work events(such as parties, conferences etc.) – and the precautions (for example, notices, policies, contractual terms etc.) needed to prevent the risk of any harassment taking place. It is recognised that the impact is likely to be felt most significantly in sectors which are largely public facing, such as retail, hospitality and transport.                                                                                                                                                             

Regulations on reasonable steps to prevent sexual harassment

A power will be introduced enabling regulations to be made specifying what are to be regarded as reasonable steps an employer should take (or has failed to take) to comply with its duties in respect of reasonable steps to prevent sexual harassment and its liability for acts of sexual harassment under the Equality Act 2010.

Implementation Status (November 2024)

  • Part of the Employment Rights Bill.
  • Regulations will be made specifying steps and matters to have regard to for the purposes of taking "reasonable steps". The impact assessment indicates that a reasonable step may be a requirement for employers with at least 250 employees to produce action plans and to report on them via the gender pay gap reporting service (with reporting on those employers who have not produced a plan).
  • "The majority of reforms will take effect no earlier than 2026".
     
Action

  • Follow the outcome of a consultation and regulations on reasonable steps in the context of sexual harassment risks closely. Meanwhile, it will be important to follow the recommendations set out in the current EHRC guidance on harassment and sexual harassment in the workplace.

  • The EHRC guidance currently recommends employers undertake a risk assessment on sexual harassment. While there are no set criteria around this, EHRC has indicated that the framework of a health and safety assessment may be appropriate.  

  • Consider what further steps can be taken now in conjunction with staff representatives, including the suggestion that a reasonable step may be for larger employers (with at least 250 employees) to publish a sexual harassment action via the existing gender pay gap reporting service. Ensure that any measures undertaken comply with wider legislative, regulatory and data protection requirements.  

In detail
  • Regulations may specify what are to be regarded as reasonable steps an employer should take or has failed to take to comply with:
     
    • its duties to take all reasonable steps to prevent sexual harassment under the Equality Act (which will include the new proposed third-party harassment provisions) and its use of the all reasonable steps defence to defend a sexual harassment claim; and
    • to comply with its duty to take all reasonable steps to prevent sexual harassment under s40A Equality Act.
       

  • Steps which may be specified in regulations include but are not limited to:

    • Carrying out assessments of a specified description.
    • Publishing plans or policies of a specified description.
    • Steps relating to the reporting of sexual harassment; and
    • Steps relating to the handling of complaints.

     

  • Regulations may also require employers to have regard to specified matters when taking those steps.
     
  • The government's impact assessment indicated that these regulations may include a requirement for employers with at least 250 employees to submit action plans through the existing gender pay gap reporting service digital platform and the publication of a list of organisations who do not submit a plan.
Impact

  • While the proposed regulations are limited to sexual harassment, employers will still need to show that they have taken all reasonable steps to prevent harassment in the workplace (by another worker or, when it comes into force, a third party) to defend an individual claim related to a protected characteristic. These steps may be helpful in guiding an employer's wider approach.                                                                                                                                                      

Sexual harassment allegations expressly stated to be protected disclosures

Disclosure of sexual harassment will be explicitly protected under the whistleblowing legislation.

Implementation Status (November 2024)

  • Part of the Employment Rights Bill
  • "The majority of reforms will take effect no earlier than 2026".
     
Action

  • While case law confirms that sexual harassment allegations will likely meet the statutory criteria for protected disclosures, employers will need to consider whether or not they need to make adjustments to their approach to the routes for reporting and investigating such allegations, together with their policies and procedures in line with their whistleblowing framework, as well as reflecting any specific regulatory guidance.

  • Manager training on handling such allegations will be key. 

In detail
  • The existing statutory whistleblowing protection will be amended to provide that it will be a protected disclosure for an employee to report that sexual harassment has occurred, is occurring or is likely to occur.
Impact
  • To qualify as a protected disclosure, a worker must still reasonably believe that they are acting in the public interest and that the disclosure tends to show a past, present or likely future relevant failure relating to sexual harassment. Where the disclosure qualifies, the individual will be protected from suffering a detriment or dismissal as a result of making the disclosure.
     
  • The government is seeking to encourage businesses "to recognise sexual harassment as a serious matter and incorporating reports into whistleblowing policies and procedures… could lead to improved working conditions and workplace culture".  It will also encourage workers "to report wrongdoing through whistleblowing channels and routes".
     
  • Contractual terms will be void insofar as they purport to preclude the making of a protected disclosure. Sexual harassment disclosures will be specifically excluded from the scope of confidentiality provisions in employment documentation. Employees will also be able to seek interim relief where they make a claim to the Employment Tribunal.
     
  • The government's impact assessment states that the options of including other forms of harassment "will be kept under review".