From compliance to culture: navigating the new sexual harassment laws in Great Britain

Katie Russell^[1]

Burges Salmon, Edinburgh

Katie.russell@burges-salmon.com

Tackling workplace harassment, particularly sexual harassment, remains a significant priority for the UK government, driven by persistent cultural issues and high-profile cases across a variety of sectors. While Northern Ireland is equally committed to tackling sexual harassment in the workplace, it has a different legislative regime (some of which is covered by the Sex Discrimination (Northern Ireland) Order 1976^[2]). Given this, this article focuses on employers with operations in England, Scotland and Wales.

Legislative developments in the last year coupled with upcoming provisions contained in the Employment Rights Bill (ERB) (a very significant new piece of legislation containing a wide range of new employment rights which is currently working its way through the UK Parliament), mean employers are having to reassess and adapt their approach to managing harassment in the workplace. Employers who are not already on top of these changes could be exposed to significant liability, both financially and reputationally. Understanding the implications of these evolving harassment laws will, therefore, be essential not only to create and foster a safe and inclusive workplaces, but also to avoid the risk of employment tribunal claims and potential enforcement action and penalties from the Equality and Human Rights Commission (EHRC). Reputational damage, of course, may also follow suit for those employers who fall foul of the laws.

In this article, we explore the steps employers should take to comply with existing and upcoming harassment legislation.

The law on sexual harassment: from reactive to proactive

Workers have longstanding legal protections if they are sexually harassed. Protection is provided through a variety of different legislative mechanisms but for the purposes of this article, we will focus on the protections offered by the Equality Act 2010. There are two main types of harassment claims that a worker can bring under the Equality Act 2010 where they have been sexually harassed by a fellow worker or the employer’s agent. The first is harassment related to a protected characteristic (eg, sex or sexual orientation) and the second is a specific claim of sexual harassment (harassment that includes conduct of a sexual nature). In respect of both claims, the conduct, which must have occurred during the course of employment (a concept which is widely interpreted), must be unwanted and have the purpose or effect of either violating the employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. It is perfectly possible that conduct could amount to both harassment related to a protected characteristic and sexual harassment.

Assuming the legal test is met, an employer will be liable for such conduct by an Employment Tribunal unless they can rely on the ‘all reasonable steps’ defence, demonstrating that they have taken all reasonable steps to prevent sexual harassment from occurring. Compensation in harassment cases is uncapped so damages can be significant.

However, following a significant rise in sexual harassment cases since the #MeToo movement – particularly in sectors such as retail, healthcare, finance and hospitality – October 2024 saw the introduction of an additional and significant new legislative reform which requires employers to take proactive steps to prevent the sexual harassment of their workers.

This means that employers are now subject to a new anticipatory duty to take ‘reasonable steps’ to prevent sexual harassment in the workplace. In other words, the new duty requires employers to identify and assess potential risks, where workers could potentially be subject to sexual harassment and to implement reasonable measures to prevent the sexual harassment before it occurs. The new duty applies to all employers regardless of whether they have had complaints or incidents of sexual harassment.

If a worker successfully brings a claim for harassment against the employer and the employment tribunal finds that the employer has failed to comply with the new duty, it may order an uplift in compensation of up to 25 per cent. The EHRC also has powers to investigate and take enforcement action against employers who are not meeting their obligations. This could include formal investigations and public enforcement notices.

The key ‘reasonable step’ that all employers should complete to address and prevent the risk of sexual harassment occurring within their workplaces is to carry out and maintain an organisational risk assessment that identifies the risks together with reasonable steps needed to mitigate those risks. Importantly, while workers have no claim currently (but see below) to bring a claim against their employer if they are harassed by a third party in the course of their employment, employers should address the risk of harassment by third parties as part of this risk assessment.

While there will be common themes, the risks will vary from employer to employer, and so the steps that are reasonable for each employer to take will differ. This means there is no prescribed list of steps that employers (although the ERB introduces a new power for subsequent regulations to specify what constitutes ‘reasonable steps’ through future regulations).

Steps might include revising existing anti-harassment policies and/or introducing new policies, introducing easily accessible mechanisms for reporting harassment and running updated training. Working practices and arrangements may also need to be adapted if the risk of sexual harassment is identified. To address the risks posed by third parties, employers should consider matters such as the nature and frequency of third-party contact and implement preventative measures accordingly. These could include introducing new contractual clauses with suppliers, public signage discouraging harassment and staff training or guidance on how to respond to third-party incidents.

Unsurprisingly, communication with the workforce will also be key to preventing sexual harassment. Employers should be very clear with staff on their expectations, making sure that employees know that sexual harassment will not be tolerated. Buy-in and visible support from the organisation’s leadership team will play a key role here. Steps should also be taken to ensure that workers understand how they can report concerns about or incidents of sexual harassment – in some cases anonymous reporting mechanisms may be sensible.

Employers will also need to ensure that the measures they put in place are monitored and reviewed on a regular basis – and that adequate records are kept. If an employer is ever called upon to demonstrate the steps they have taken either in an employment tribunal or by the EHRC, they will be in a much better position to do so if they can point to a risk assessment and implementation programme which is adhered to and regularly reviewed.

Reforms to the anti-harassment regime contained in the ERB will raise the bar further for employers. From October 2026, employers will be required to take ‘all reasonable steps’ (as opposed to ‘reasonable steps’) to prevent sexual harassment. This subtle but powerful change in terminology signals a more stringent standard, aligning with the existing ‘all reasonable steps’ defence under the Equality Act.

Third-party harassment: a new liability

Another very significant reform coming in as part of the ERB is the introduction of employer liability for third-party harassment (including but not limited to sexual harassment). Expected to come into force in October 2026, if the provisions remain as currently drafted, employers will also be liable if a worker is harassed by a third party in the course of employment and the employer had failed to take all reasonable steps to prevent the harassment. ‘Third party’ is very wide-ranging and will cover customers, clients, visitors to the site or members of the public.

This change is important for all employers but is particularly relevant for sectors where workers interact with the general public, such as retail, retail banking, hospitality and healthcare and could see claims against employers rise significantly. While the risk assessments to prevent sexual harassment should already address the risk raised by third parties (see above), the risk posed by third parties should be reassessed ahead of this change coming into force.

Whistleblower protections: strengthening the shield

The ERB also expands whistleblower protections by explicitly including disclosures about sexual harassment as ‘qualifying disclosures’ under whistleblowing legislation. Whistleblowers are already protected from dismissal and detriment and can be awarded significant compensation where a claim is upheld as compensation is not subject to a maximum cap. While such disclosures relating to sexual harassment will, for the most part, already be protected disclosures (eg, as a breach of a legal obligation or as a health and safety risk), this clarification is intended to further encourage the reporting of suspected wrongdoing. It may mean that, going forward, we see a rise in sexual harassment and whistleblowing claims being brought together.

Ban on confidentiality clauses and non-disclosure agreements: unintended consequences?

The ERB has also recently been amended to introduce a ban on non-disclosure and confidentiality clauses in agreements that purports to prevent a worker from making disclosures relating to harassment or discrimination. For employers, the inability to rely on the terms of any agreement remaining confidential in such circumstances could influence decisions around whether to settle these types of claim potentially resulting in unintended consequences for employees.

Practical implications for employers

The implications of failing to comply with these new and incoming legislative changes are substantial.

To avoid this, employers should:

• prepare and regularly review their risk assessment and engage with key stakeholders on organisational risks that need to be addressed and/or mitigated;
• review and update anti-harassment policies to reflect the new and incoming legal obligations;
• regularly train all staff, including the leadership team, on expected standards of behaviour and ensure the leadership team leads by example. Training should also be part of any new joiner’s induction programme.
• ensure line managers are equipped to identify, address and report sexual harassment and/or inappropriate behaviour;
• establish clear reporting channels and ensuring complaints are investigated promptly and thoroughly; and
• audit third-party relationships and include anti-harassment clauses in contracts.

Looking ahead: a cultural shift

These changes to the law on sexual harassment are designed to send a clear signal to all employers that they are expected to take the Government’s stated desire to ‘create and maintain workplaces and working conditions free from harassment’ seriously. Yes, this will require legal compliance by taking preventative steps, but it will also require the encouraging of cultural change where necessary. By embedding the duty to prevent sexual harassment into employment law and introducing additional protections, the Government is clearly focused on fostering workplaces rooted in dignity, respect and inclusion.