Sexual harassment: Employers responsibilities

The Crime Survey for England and Wales (CSEW) estimates that 1 in 10 people aged 16 years and over experienced some form of harassment which caused them to feel upset, distressed or threatened, with some targets experiencing both non-sexual and sexual harassment in the last 12 months. The survey found that the likelihood of experiencing sexual harassment was highest among younger age groups.

This was particularly the case for women, with 23% of those aged 16 to 24 and 16% of those aged 25 to 34 experiencing some form of sexual harassment in the previous year (2023 – 2024) compared with 5% of those aged 35 and over. There was a similar pattern among men with 8% of the youngest 16 to 24 age group experiencing sexual harassment in the last 12 months, compared with 2% of men aged 25 years and over.

Inappropriate sexual jokes, comments or gestures were the highest reported experience of sexual harassment, and of those who had experienced any type of harassment, three quarters (75%) reported at least one experience took place in person. The majority of those who had experienced in-person harassment experienced at least one type of harassment in a public space (73%), with a quarter (26%) of those who had experienced sexual harassment saying that they had experienced the harassment at their place of work.

Organisations who fail to prevent or handle sexual harassment incidents and create a culture of tolerance not only risk legal consequences, they also risk long lasting financial consequences, possible unwanted media attention, and potential damage to their brand’s reputation. For example, in 2023, it was revealed local authorities in England and Wales spent more than £1.7million to cover the wage cost of employees who had been suspended after allegations of sexual harassment.

The number of sexual harassment related employment tribunal decisions was 125 cases in first three quarters of 2024, this compares to 117 for the same period in 2023, representing a seven per cent increase, and according to a recent ACAS survey, 14% of employers and 6% of employees said they had witnessed sexual harassment in their workplace.

In this article we will outline what sexual harassment is, and explain the legal framework of sexual harassment laws in the UK, including examining the changes and additional protections that the Worker Protection (Amendment of Equality Act 2010) Act 2023 gives to employees and the additional statutory duties that this Act requires of employers.

What is sexual harassment?

Sexual harassment is any unwanted behaviour of a sexual nature. In England and Wales, the legal definition of sexual harassment is when someone carries out unwanted sexual behaviour towards another person that makes them feel upset, scared, offended or humiliated. The unwanted sexual behaviour can occur in person, on the phone, by text or email, or online, and the harasser and the target of the harassment can be of any gender.

Sexual harassment can include a wide range of behaviours, such as but not limited to:

• Sexual comments or noises such as catcalling or wolf-whistling etc.
• Sexual gestures
• Predatory behaviour
• Coercion
• Leering, staring or suggestive looks which can include looking someone up and down
• Sexual jokes
• Sexual innuendos or suggestive comments
• Unwanted sexual advances or flirting
• Sexual requests or asking for sexual favours
• Sending emails or texts with sexual content, for example, unwanted ‘sexts’ or explicit pictures
• Sexual posts or contact on social media
• Intrusive questions about a person’s private or sex life
• Someone discussing their own sex life
• Commenting on someone’s body, appearance or what they are wearing
• Spreading sexual rumours
• Standing close to someone and invading their personal space
• Displaying images of a sexual nature and/or offensive material, such as pornographic pictures or calendars, including those in electronic formats such as computer screen savers or by circulating such material in emails or via social media
• Unwanted physical contact of a sexual nature, for example, brushing up against someone or hugging, kissing or massaging or unnecessary touching, through to sexual assault, indecent exposure, stalking and rape (although rape is defined as a separate criminal offence)
• Taking a photo or video under another person’s clothing, without their knowledge, this is known as “upskirting.”

Whatever the specific behaviour, if it is unwanted, upsetting and of a sexual nature, it qualifies as sexual harassment. Some forms of sexual harassment are automatically unlawful in England and Wales, and are therefore crimes. These include:

• Stalking
• Indecent exposure
• ‘Upskirting’
• Any sexual harassment involving physical contact, amounts to sexual assault in English and Welsh law

However, other forms of sexual harassment might also break criminal law, depending on the situation.

Sexual harassment can be a problem in any workplace regardless of the organisation’s size or activity, and it can affect any worker. Workplace sexual harassment can occur in a number of ways, some are more obvious and can be easy to identify, whilst others are subtle and more difficult to recognise. A harasser can be anyone an employee has contact with because of their work.

Sexual harassment is often found to be linked with power, either through the abuse of power by the perpetrator who feels more powerful than the target, or when the perpetrator feels powerless and uses the sexual harassment as a means of disempowering the target. Sexual harassment need not specifically be targeted at any particular worker; it can be experienced when there is an offensive environment created at work, such as when there are pornographic images on display, or when sexual comments are overheard about others.

Sexual harassment laws in the UK

Multiple Acts cover sexual harassment law in the UK and include the Protection from Harassment Act 1997, Sexual Offences Act 2003, Stalking Protection Act 2019, Health and Safety at Work etc. Act 1974 (HASAWA) and the Equality Act 2010.

The most important is the Equality Act 2010, which defines sexual harassment and makes employers liable for their employees’ offensive behaviour. Under the Equality Act 2010, sexual harassment is recognised as a free standing form of discrimination. The Act says someone sexually harasses another person if they:

• Engage in unwanted conduct of a sexual nature and
• The conduct has the purpose or effect of either violating the other person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Unlike direct discrimination, sexual harassment claims do not require any comparator, in other words it is not necessary for the worker to show that another person was, or would have been, treated more favourably. Employees are able to complain about behaviour that they find offensive even if is not directed at them.

Employers will be liable for sexual harassment committed by their workers in the course of their employment unless they can show that they took all reasonable steps to prevent the harassment. ‘In the course of employment’ includes acts committed in any other place where the worker is working, such as offsite, at a training course, conference or external meeting, as well as other circumstances in which the worker is not actually working but is connected with work, such as at a leaving party. This liability is now further strengthened under the Worker Protection (Amendment of Equality Act 2010) Act 2023.

October 2024 Law change

The government has introduced a new duty as an amendment to the Equality Act 2010 to prevent sexual harassment from taking place. From 26 October 2024, a new statutory duty, part of the Worker Protection (Amendment of Equality Act 2010) Act 2023, mandates employers to proactively prevent sexual harassment from occurring in their workplaces, by colleagues.

Employers will now have to consider where their staff are at risk and take reasonable steps to remove those risks. Although the Worker Protection Act does not specifically include liability for third party harassment, employers will still be expected to take reasonable steps to prevent sexual harassment by any perpetrator and that includes third parties such as service users, patients, customers, clients, contractors and members of the public.

The requirement to take reasonable steps means that employers need to understand the risks that their staff face and take measures to prevent or reduce them. In order to identify and address risks, employers need to:

• Consider the risks of sexual harassment happening in their organisation
• Consider steps they could take to reduce the risks of sexual harassment happening
• Consider which of those steps are reasonable for them to take

They must raise awareness of the issue through a clear and well-communicated policy, they must conduct risk assessments, and ensure that all staff receive training on appropriate and inappropriate behaviours, how to report sexual harassment, and the support that they will receive if they do report sexual harassment.

Employers’ responsibilities

The Worker Protection Act 2024 is an amendment to the existing Equality Act 2010. The new duty contained in this amendment is an anticipatory duty, meaning that employers will need to take a proactive and preventative approach to protect their employees from workplace sexual harassment.

This duty is an important move forward in tackling workplace sexual harassment particularly as some employers do not have safe reporting routes for employees, and many employees fear the repercussions of reporting sexual harassment and the impact it will have on them and their jobs/careers. Workplace power dynamics and factors such as insecure working arrangements often mean people feel they have little choice but to either put up with the harassment or leave their jobs. 

This new duty turns the tables, and rather than the onus being on employees to report the sexual harassment before employers are obliged to act, employers will now have to proactively think about the potential risks in their organisations and take reasonable steps to eradicate, mitigate or minimise them.

The Equality and Human Rights Commission (EHRC) is the body responsible for enforcing the new duty and they have issued comprehensive guidance for employers that defines the obligations and liabilities under the Act and the expectations on employers to comply with the new duty, these include:

• Anticipatory duty – Employers must proactively implement measures to prevent sexual harassment from taking place. This may be done by identifying risks and anticipating scenarios where sexual harassment may occur in the course of employment, in order to implement preventative steps before incidents arise.
• Reasonable steps – The law does not list the specific steps an employer must take to prevent sexual harassment or a prescribed minimum to protect its workers. Instead, “reasonable” steps vary from employer to employer, based on their size, nature of the employer, sector and resources available to it. Employers must conduct a risk assessment relating to harassment, sexual harassment and victimisation, and put appropriate safeguards in place, such as training, effective communications, regularly reviewed policies and procedures, and reporting mechanisms.
• The course of employment – The duty covers acts committed in the workplace and where the worker is working, such as from home, offsite or at external locations such as client meetings. It can also include circumstances where the worker is not working but it is an extension of the employment, such as social gatherings. The strength of the connection is to be decided by the employment tribunal in each case.
• Third party harassment – The duty requires employers to take reasonable measures to not only prevent sexual harassment by their own workers but by external third parties, such as clients, customers or patients etc. When carrying out a risk assessment, employers should consider the risk their workers may be sexually harassed by third parties, and take reasonable steps to prevent such harassment. Although the preventative duty includes third-party harassment, a worker cannot bring a standalone claim in the employment tribunal for third-party harassment.

To complete a risk assessment, employers can use existing risk management frameworks, such as those used in workplace health and safety, to assess risks relating to sexual harassment. The assessment should identify the risks, identify who may be harmed and state the control measures identified to minimise the risks. Things that employers may need to consider when undertaking a risk assessment include, but are not limited to:

• Out of hours working
• Job insecurity, for example, use of zero-hours contracts, agency staff or contractors
• Lone working and night working
• The presence of alcohol
• Customer-facing duties
• Lack of diversity in the workforce, especially at a senior level
• The workforce demographic, for example, the risk of sexual harassment may be higher in a predominantly male workforce
• Workers being placed on secondment
• Travel to different work locations
• Working from home
• Attendance at events outside of the usual working environment, for example, training, conferences or work-related social events
• Socialising outside work
• Social media contact between workers
• Power imbalances

The risk assessment should also consider any previous cases, any near misses and any associated risks, and employers should ensure the risk assessment is updated regularly to consider and mitigate any new or additional risks, such as when a new employee starts work.

The first priority in dealing with sexual harassment is to eliminate it from the workplace and having robust policies and procedures supported by effective training can be key to creating an aware and respectful workplace environment. Training should not only be for managers but should include all staff and should begin during the induction process. It is important that this training is seen as an essential part of the culture of the organisation that employees at all levels of the organisation are expected to participate in and to comply with.

Workplace campaigns promoting respectful work behaviour and co-operation as well as raising awareness of what sexual harassment is, can also be of great benefit in helping to tackle the problem of sexual harassment.

It is important that employers encourage all staff to report sexual harassment whether they have been a target of the behaviour or a witness to it. A workplace environment where reporting is encouraged and known to be acted upon will benefit all employees and help deter sexual harassment. Essential to any reporting process is the certainty of confidentiality so that employees feel safe to raise any issues.

The preventative duty only applies to sexual harassment. It does not cover harassment related to a protected characteristic, including sex, nor does it apply to less favourable treatment for rejecting or submitting to unwanted conduct. However, these types of harassment are unlawful and employers should take steps to prevent all types of harassment at work.

There are additional financial penalties that can be imposed on employers who do not take sufficient steps to protect their staff. If the employee wins their tribunal case and is awarded compensation, the employment tribunal can increase this by up to 25%. Compensation for sexual harassment can include compensation for both past and future loss of earnings, injury to feelings and personal injury.

The Equality and Human Rights Commission (EHRC) can also take enforcement action against employers. EHRC enforcement powers allow them to:

• Investigate an organisation or individual that they suspect has broken equality law
• Enter into a formal, legally binding agreement with an organisation or individual; this allows them to agree an action plan to prevent future discrimination

EHRC also have litigation powers. These powers allow them to:

• Give legal assistance to individuals making claims under the Equality Act 2010
• Take, or get involved in, cases that will strengthen equality and human rights laws.

Sexual Harassment policies

Employers will need to assess their current processes, policies and working practices, and implement changes to ensure reasonable steps for the prevention of sexual harassment have been taken. An employer may have separate policies to deal with sexual harassment and other forms of harassment, or a single policy covering both. A good sexual harassment policy should:

• Specify who is protected
• State that sexual harassment will not be tolerated and is unlawful
• State that the law requires employers to take reasonable steps to prevent sexual harassment of their workers
• State that harassment or victimisation may lead to disciplinary action up to and including dismissal
• State that aggravating factors, such as abuse of power over a more junior colleague, will be taken into account in deciding what disciplinary action to take
• Define sexual harassment and provide clear examples of it. These examples should be relevant to the organisation’s own working environment and reflect the diverse range of people that harassment may affect
• State that workers are encouraged to report any incidents of sexual harassment and include an effective procedure for receiving and responding to complaints of harassment
• Address third-party harassment such as by customers or service users including what steps will be taken to prevent this and what steps will be taken to remedy a complaint and prevent it from happening again
• Include a commitment to review the policy at regular intervals, monitor its effectiveness and implement any changes that may be required
• Cover all areas of the business, including any overseas sites, subject to any applicable local or national laws.

Having a robust sexual harassment policy will not only encourage reporting of any unwanted and/or unlawful conduct but will also communicate the consequences of engaging in unwanted and/or unlawful conduct. Employers should ensure that all employees are aware of their sexual harassment policy, and they should raise awareness among employees of any changes made to the policy such as following reviews and/or changes to the law. Other policies and procedures should also be reviewed to ensure that they interact well with the sexual harassment policy and that they create a culture in which the risk of sexual harassment is reduced.

Employers should also consider publishing their sexual harassment policy on an easily accessible part of their external-facing website to publically announce their commitment to eradicating sexual harassment in their organisation.

Final Thoughts

The impact of workplace sexual harassment on employees can be devastating. Targets of sexual harassment often experience both immediate and long-term stress, anxiety and depression, witnesses to the behaviours may also be affected. Experiencing sexual harassment can undermine employees’ performance, decrease organisational commitment and influence employees’ intentions to leave. Organisations can also be impacted commercially by failing to prevent sexual harassment at work, which doesn’t just stem from specific incidents but is created by fostering a culture where sexual harassment is tolerated.

Creating and maintaining a safe working environment for all employees goes beyond compliance, it has the benefit of improving the retention, productivity and engagement of all employees and can help to attract new talent who want to work in a positive work culture to the organisation.