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United Kingdom: Employer duty to prevent sexual harassment

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In brief

The Worker Protection (Amendment of Equality Act 2010) Act 2023 has received Royal Assent. The Act introduces a new duty on employers to take reasonable steps to prevent sexual harassment and will come into force in October 2024. This duty will sit alongside employees’ existing protections from sexual harassment in the workplace.

Key takeaways

  • Employees already have the right not to suffer sexual harassment at work. The Act introduces an additional, positive duty on employers to take reasonable steps to prevent sexual harassment of employees in the course of employment.
  • If a tribunal finds that an employee has been sexually harassed and awards compensation, it must then consider whether the employer has breached the duty. If it concludes that it has, then it may award an uplift on compensation (depending on the severity of the breach) of up to 25%.
  • Reasonable steps may include training, for example.
  • When the legislation was first drafted, it was envisaged that it would reintroduce a duty on employers to protect their employees from third-party harassment in the course of employment (for example, by customers or clients). The draft Bill also required employers to take “all reasonable steps” to prevent sexual harassment (mirroring the existing provisions in the Equality Act 2010 that exempt an employer from liability for sexual harassment if it took all reasonable steps to prevent that harassment). However, the House of Lords removed these in the course of the legislative process.
  • The Act will come into force on 26 October 2024.
  • In practical terms, the Act will not positively require employers to change their anti-harassment policies or strategies. However, if those strategies are not robust, the Act will create the risk of higher compensation if harassment were to occur in the workplace. Most employers’ anti-harassment and general IDE strategies are based on internal training. The courts have previously provided a reminder that old, tick-box training might not amount to “reasonable steps”: United Kingdom: “Stale” diversity training is not a defence to a claim for harassment.

For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie.

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Author

Julia Wilson is a partner in Baker McKenzie's Employment & Compensation team in London and co-chair of the Firm's Workforce Redesign client solution. Julia also leads the employment data privacy practice in London. Julia advises multinational organisations on a wide range of employment and data protection matters. She is highly regarded by clients, who describe her as a “standout” performer who "knows how we think." A member of the Firm's Pro Bono Committee, she plays a lead role in the Firm's pro bono relationship with Save the Children International. She also collaborates with Law Works to deliver employment law training to solicitors who provide pro bono advice to individuals. Julia regularly presents and moderates panels on podcasts, webinars and in-person events, is often quoted in mainstream media, and authors articles and precedents for a range of industry and other publications.

Author

Monica Kurnatowksa is a partner in the Firm’s London office. She is recognised by The Legal 500 and Chambers UK as a leading individual. Chambers say she has “impressive experience of handling complex employment disputes and advisory matters for major clients. She is known for her expertise in trade union matters.” "The breadth of her experience is phenomenal." "She is an outstanding lawyer who provides a first-class service while juggling the intense demands of running high-profile matters on behalf of her clients. She is unflappable, courteous and extremely knowledgeable”. Monica is a member of the Consultation Board of PLC Employment On-line and is a regular speaker at internal and external seminars and workshops.

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Rachel Farr is a Senior Knowledge Lawyer in Baker McKenzie, London office.

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