HR Coffee Break Briefing: Sexual Harassment

In his latest Coffee break Briefing, Employment Associate, Chris Dobbs covers the expected changes for Sexual Harassment Law in the new Employment Rights Bill.

You can watch the full video and read a brief summary below...

What counts as Sexual harassment?

The Equality Act 2010 prohibits harassment which relates to all the protected characteristics but also has two specific forms which may be deemed “sexual harassment”:­

• Sexual Harassment occurs when a person engages in unwanted conduct of a sexual nature which violates a person’s dignity or creating an intimidating, hostile, degrading and offensive environment for them.
• Harassment can also occur specifically when unwanted conduct is related to gender reassignment or sex, has the purpose or effect creating a humiliating and uncomfortable environment and the individual on the receiving end either rejects or submits to the conduct and is treated less favourably as a result.

Examples of this include sexual comments, jokes, images, gestures, touching, hugging, kissing and sharing explicit material.

Both types of sexual harassment can apply regardless of the harasser’s or victim’s gender, and they do not need to be intentional to be unlawful. What matters is the effect on the person experiencing it.

What is the Worker Protection Act 2023?

In 2023 the Worker Protection Act came into place, it created a proactive and anticipatory duty on employers, to take reasonable step to prevent employees being sexually harassed. This includes harassment by both colleagues and third parties that took place through work.

What counts as reasonable steps?

The EHRC (equality and Human Rights Commission) suggests reasonable steps can include:

• Risk Assessments - employers must actively identify and assess the risks of sexual harassment and implement measures to mitigate them.
• Clear policies and procedures - reporting investigations and sanctions.
• Accessible reporting routes - including anonymous options where appropriate.
• Monitoring and review - track issues and act on learning

What are the risks of not complying with the Worker Protection Act 2023?

Tribunals can apply an ACAS style uplift of25% , in compensation and the EHRC (Equality and Human Rights Commission) can use enforcement powers if an employer has not followed the correct procedures. The 25% uplift could apply to the full award made in relation to the discrimination claim.

What are the practical steps an employer should take?

An employer has a key role to prevent any sort of sexual harassment within a workspace by carrying out the following steps:

1. Run a sexual harassment risk assessment

2. Refresh and publish policies

• This includes having a clear anti-harassment policy in plain English, with clear routes to report behaviours. It should also outline the process of an investigation and how victims will be safeguarded. 

3. Train everyone and keep a record
   •  Employers should use short scenario-based training for all staff and a more detailed sessions for managers. Materials should be kept on file so that refresher sessions can take place over time.
4. Strengthen reporting and investigations
   1. Employers should have multiple, well sign-posted channels with proportionate investigations taking place, even for verbal allegations.
5. Address third-party risks
   1. This includes adding anti-harassment clauses into contracts (e.g. conduct standards, escalation routes, right to remove offenders)
6.   Monitor and improve
   1. this can include tracking incidents, inviting anonymous feedback and making what’s changing clear.

Is sexual harassment law set to change in the Employment Rights Bill?

Sexual harassment law will be changing with the upcoming Employment Rights Bill. The changes which are likely to come up will be:

• Reasonable steps will be changing to all reasonable steps from October 2026, which is set to be a higher bar preventative duty than today’s reasonable steps.
• Third-party harassment is set to be extended across all of the protected characteristics (not just sexual harassment).
• Protections for disclosures of sexual harassment will come into effect, like those for whistle blowers. This will sit alongside the existing victimisation protections.
• There is expected to be tighter restrictions on NDAs (non-disclosure agreements)/confidentiality clauses in harassment cases.

Employment Law Experts

If you have any questions following this webinar, you can get in touch with a member of the team on 01202 499255 or by filling in the form at the top of the page. We offer all new clients a free initial chat.

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