Compensation is already uncapped for sexual harassment claims. If a tribunal finds an employee’s complaint legitimate, there’s no limit to what their employer can be ordered to pay.
And as of October 2024, successful claims can be uplifted by 25% if new legal duties aren’t met.
This change means employers could end up paying 1.25x the compensation if they fail to take “reasonable steps” to prevent the sexual harassment of their staff.
Read our guide to learn more about the updates to sexual harassment law and what you need to do to comply.
Key Takeaways
- Sexual harassment is illegal under the Equality Act 2010, and employers are required to prevent it in the workplace.
- As of October 2024, employers must consider the risk of harassment from outside the organisation and take “reasonable steps” to prevent it in the “course of employment”, not just within the workplace itself.
- Failing to take these steps could lead to compensation claims being increased by up to 25%.
- A proactive approach, including policies, risk assessments and training, is essential to meet these legal duties.
What is Sexual Harassment?
The legal definition of sexual harassment is unchanged by the updates, but it’s worth recapping the type of behaviour you need to proactively discourage.
Sexual harassment is unwanted sexual behaviour that causes offence, humiliation or intimidation, or creates a hostile environment.
Sexual behaviour is a broad term. It covers physical, verbal and non-verbal acts.
On one end of the spectrum, you have obscene behaviour such as public nudity. But loaded comments, lewd gestures and sharing graphic images all still qualify as sexual harassment.
It’s important to note that the individual committing the behaviour doesn’t decide what’s upsetting or unwanted. It’s the person on the receiving end who determines what counts as harassment. And any defence of “it’s just a joke” will get pulled apart at an employment tribunal.
What Does the Law Say?
Sexual harassment in the workplace is illegal.
Although sexual harassment is mentioned in multiple pieces of legislation, the Equality Act 2010 is the most important one to be aware of. (It’s also the act being amended in October 2024.)
Under the Equality Act, it is illegal to discriminate against a person because of nine protected characteristics, including:
- Gender reassignment
- Sexual orientation
- Sex
Unwanted sexual behaviour (i.e., harassment) inevitably relates to one or more of these protected characteristics, so it’s illegal.
The Act also makes it illegal to treat a worker less favourably because they submitted to or rejected unwanted sexual behaviour.
Because sexual harassment is against the law, employers must take steps to prevent it at work.
Right now, prevention means having clear policies and procedures in place. Every employee should have a clear, shared understanding of what sexual harassment is and why it’s not allowed. And if anyone receives or witnesses behaviour that qualifies, it should be dealt with quickly, decisively and professionally.
But from October 2024, having an anti-harassment policy in place won’t be enough.
How is the Law Changing?
In October, the Worker Protection (Equality Act 2010 Amendment) will become law.
The headline change is that employers must now prevent sexual harassment of their staff “in the course of employment.”
This is a subtle yet significant update. You already have an obligation to prevent sexual harassment among colleagues.
The October amendments extend this duty, meaning you must take reasonable steps to prevent sexual harassment from outside your organisation, too.
Effectively, the law now covers harassment from non-workers and at work-related events, not just workplace interactions among colleagues.
So, you should consider:
- Interactions with the public and other third parties (even though this isn’t explicit in the amendment)
- Work events outside of the usual workplace (such as Christmas parties)
If a sexual harassment claim related to either of these scenarios is successfully brought against you, you may have to pay a 25% uplift if it’s found you didn’t take “reasonable steps” to prevent it.
The Equality and Human Rights Commission
Amendments to the Equality Act also enhance the powers of the Equality and Human Rights Commission (EHRC).
From October, the EHRC can investigate alleged non-compliance and take direct enforcement action against employers who fail in their new duties.
How Can I Show My Organisation Has Taken Reasonable Steps?
It’s important to show you’ve been proactive. The wording in the amendment is specific; you must take reasonable steps to prevent harassment.
An example of this preventative approach is included in official guidance on the amendment. It describes a small theatre company that adopts a zero-tolerance policy to harassment from third parties since permanent staff often interact with members of the public and external consultants.
But the theatre owner doesn’t stop at policy writing. They communicate the policy to all staff, encourage them to report incidents and set out how those incidents will be handled. The policy is also made clear to third parties. It’s written into ticket-purchase confirmation emails and consultants’ work contracts. It’s also displayed in public and private areas of the theatre.
The owner then examines where else staff might face harassment. The theatre hosts occasional events outside of everyday performances, such as award shows. At these events, there’s an additional risk of sexual harassment in the course of employment, coming from third parties like award show attendees or temporary technical staff.
Extra training specific to this risk is considered but not pursued further. The theatre has a limited budget, and the training is expensive. It’s also exclusively for events the theatre rarely hosts, so the cost isn’t justified.
In this scenario, the employer has proactively considered where the risks of sexual harassment come from and taken reasonable steps to prevent unwanted behaviour in three phases:
- Assess where staff are at risk of sexual harassment in the course of employment
- Implement reasonable control measures
- Review if any further action is needed
Sexual Harassment Risk Assessment
Your sexual harassment risk assessments will have to cover everywhere harassment might happen within your organisation, including interactions with other stakeholders.
You then consider how you can reasonably manage each risk. Effectively, you balance the risk with the time, cost and practicality of your control measures. You can see this in the “theatre” example.
The owner identified a risk of sexual harassment at one-off events and found relevant staff training. But, the cost of the training far outweighed the risk of harassment staff faced, so investing in it would have gone beyond “reasonable.”
Of course, if the theatre changes direction and these events happen more frequently, the risk assessment will need to be reviewed. Staff will be expected to interact more often with third parties outside of normal performances, so they’ll be at greater risk. Training previously considered too expensive may become necessary.
Sexual Harassment Training
With the changes to sexual harassment law taking effect in October 2024, it’s more important than ever for employers to demonstrate that they’ve taken proactive, reasonable steps to prevent harassment in the workplace.
Our online Sexual Harassment Training is an essential starting point, giving your team the knowledge they need to recognise, prevent and address harassment effectively. It’s applicable across all workplaces, offering practical guidance that supports compliance with legal standards. Plus, it’s designed to be cost-effective, making it a reasonable solution for businesses of any size.
About the author(s)
Jonathan Goby
