Changes to The Equality Act 2010 in effect from next month will up the ante for businesses who must challenge inappropriate sexually motivated misconduct and take ‘reasonable steps’ to prevent sexual harassment in the workplace. 

The Worker Protection Act (2024) due to come into effect on 26 October marks a significant shift in the obligation of the employer from the reactive to the proactive. It may also strengthen existing protections for workers against sexual harassment, including when employees are working outside their normal workplace or attending work-related social events.

Employers who fail to take reasonable steps to protect their employees from sexual harassment could face enforcement action from the Equality and Human Rights Commission (EHRC).

EHRC fines

Sally Hulston, a partner at law firm Lewis Silkin, explains: “The EHRC can investigate employers who appear not to be complying with this preventative duty, and can issue unlawful act notices. If those notices are not complied with, they can issue fines.” 

Hulston says the real impact of the Act will be when an individual brings a claim for sexual harassment and wins: “If that happens, and the employer is held to have breached its proactive duty, then tribunals will have the power to increase compensation by up to 25%. There is no cap on compensation and so this could be significant.” 

Currently, an employer can defend a harassment claim if they can show that they have taken all reasonable steps to prevent it from happening, but employers are not legally required to take those steps. The new law increases the responsibility on organisations to take proactive measures, making it a breach of the Act not to take reasonable steps to prevent sexual harassment. 

Practical, proportionate and tailored to workplace circumstances

Although there is no definition of ‘reasonable steps’ included in The Worker Protection Act, the technical guidance and EHRC Code, due to be updated imminently to reflect the new duty, are expected to be interpreted as actions that are practical, proportionate and tailored to the circumstances of the workplace. 

That may include training for all employees, channels to report incidents of sexual harassment (without fear of reprisal) and effective anti-harassment enforcement policies. Businesses are being advised to review their policies and procedures to ensure they comply with the new law. 

Georgina Calvert-Lee, a senior consultant at employment law specialist Bellevue Law, says: “While there is no required list of actions to take – what is reasonable will depend on the size and resources of the organisation – there are some measures that all organisations should take to demonstrate compliance: first, that they have actually considered the specific risks to their own employees in the various scenarios where they may find themselves in the course of their work. Documented risk assessments will be important here.”

Zero tolerance stance

Lucy Cobb, employment law expert at BrightHR, says employers should reflect on what they already do to prevent sexual harassment in the workplace and consider whether more needs to be done: “It’s not just about communicating to staff that sexual harassment is not tolerated in the workplace or implementing superficial measures and then walking away. A zero-tolerance stance towards sexual harassment must be ingrained into the company culture, and policies must be regularly reviewed to make sure they are and continue to be effective.” 

Calvert-Lee warns that employers must genuinely embrace and comply with the substance of this duty and not just carry out a tick-box exercise: “If the matter ends up in litigation, they must be able to show an employment tribunal what steps they are taking and have taken to prevent sexual harassment and protect their employees.”

The best way to prevent sexual harassment is by fostering a culture where it is entirely unacceptable for anyone to engage in such behaviour, Calvert-Lee says. “But to reach that utopia, employers will have to implement a raft of practical measures to educate, applaud and sometimes sanction its staff. They will also want to document everything they are doing.”