Sexual harassment has unfortunately been far too prevalent within far too many workplaces for far too long. Whilst the issue became particularly high profile recently in the wake of the #MeToo movement and remains topical with regular stories of abhorrent behaviour in a wide range of sectors (from the NHS, to fast food, to media and interactive entertainment, etc.), it is sadly nothing new.

From a legal perspective though, a question has lingered on lips for some time now: does the law do enough to protect workers from sexual harassment? A lot of people would justifiably answer no to that question, which partly explains the significant new legislation coming into force on 26 October 2024 with the introduction of the Worker Protection (Amendment of Equality Act 2010) Act 2023 (“Amendment Act”).

Let’s briefly consider the current legislative landscape and how it’s about to change.

Up until now, UK law on sexual harassment has been anchored by the Equality Act 2010 (“EA 2010”). The EA 2010 dictates that employers can be vicariously liable for discrimination and harassment (including sexual harassment) that occurs within their workplace (or in circumstances that occur within the course of employment). Sexual harassment in this context is defined as “unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating the recipient’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the recipient”.

Employers can defend themselves from a claim that they are vicariously liable for the actions of one of their employees by showing they have taken “all reasonable steps” to prevent harassment from occurring. This has typically required evidence of pre-emptive rather than reactive steps, meaning that employers need to be able to show positive steps to prevent the behaviour in question (such as having anti-harassment policies in place, providing training, and ensuring there is an appropriate complaint procedure) in order to rely on this defence.

However, critics have long suggested (arguably with some justification!) that the legal framework of the EA 2010 doesn’t go far enough as reports of widespread sexual harassment continue across a multitude of workplaces and sectors. There is the view that employers could do more: fear of retaliation or career damage often silences victims and third-party harassment remains a blind spot. The argument goes that employer responsibilities (to the extent the EA 2010 actually requires any) can be fulfilled with limited effort, such as the provision of basic online training or surface-level policies, without any need for real cultural change to occur within the workplace.

With the Amendment Act coming into force in little over a month, what are the key changes that employers should be aware of?

1. New mandatory duty to prevent sexual harassment

For the first time, employers will be under a positive obligation to take “reasonable steps” to prevent sexual harassment in the workplace. Although the legislation doesn’t define exactly what “reasonable steps” actually means, the Equality and Human Rights Commission (“EHRC”) has released draft guidance here on what these steps are likely to comprise, which is considered further below. This test will be an objective test depending on the facts and circumstances.

2. Compensation uplift

If an employer fails to take reasonable steps to prevent sexual harassment occurring and the employer is held liable in a harassment claim, the employment tribunal can increase the compensation awarded by up to 25%. There is no apparent proportionality benchmark here although you can expect that uplifts will be at the higher end if there is limited evidence of the employer taking proactive steps to prevent sexual harassment.

3. Enforcement by the EHRC

The EHRC will gain new enforcement powers, meaning they will be able to investigate employers who fail to comply with the requirement to take reasonable steps and have the power to issue unlawful act notices, enter binding agreements with offending employers and even seek court orders to force compliance.

4. Third-party harassment

Currently, under the EA 2010, employers cannot be held vicariously liable for third-party harassment (meaning harassment of employees carried out by individuals who are not employed by the employer). The Amendment Act does not alter this position (to the frustration of many who campaigned for such protection to be introduced). However, the issue of third-party harassment has seemingly been addressed via the back door, as the EHRC’s draft guidance specifically states that the duty to take reasonable steps to prevent sexual harassment includes taking steps to prevent harassment carried out by third-parties.

In short, all businesses should take this new obligation seriously and make sure they are proactively considering potential risk areas for sexual harassment and doing what they can to mitigate these as much as possible. Employers who solely take the reactive approach of responding to and addressing complaints (even if they do this very effectively) could be vulnerable to challenge under the new rules.

So what does being proactive look like? The EHRC guidance suggests the obligation is threefold, namely: (1) adequately assess risks; (2) implement appropriate prevention measures; and (3) (crucially!) monitor their effectiveness. This will mean different things to different employers (with reasonable steps varying based on industry and size of employer) but best practice measures are likely to include the following:

• Conducting risk assessments to identify areas where sexual harassment may occur. This is likely to include a consideration of the structure of a business’ workforce (e.g. gender split at different levels of seniority), the nature of work being carried out by employees and the potential exposure of the workforce to third parties;
• Providing effective training to staff. Different levels of training may be appropriate for different levels of employees, and employers will likely need to demonstrate that the training is delivered at regular intervals and kept up to date;
• Policies related to the prevention of sexual harassment should be introduced or updated. Again, employers would be wise to keep these under regular review, and at the very least revising them at appropriate intervals or following an incident of harassment occurring;
• Establishing clear reporting procedures and ensuring employees know how to use them, ensuring remote and accessible access; and
• Keeping initiatives to prevent sexual harassment under review and closely monitoring the effectiveness of these measures.

The above are likely to be relevant to most employers and certainly those operating in the creative and technology industries that Wiggin specialises in advising. However, it is perhaps even more important that businesses operating in these industries take note. Whilst sexual harassment is a risk for all industries, there have been many notable high-profile examples of sexual harassment within the interactive entertainment / games industry, Film &  TV and tech businesses over the last few years. Cases involving these sectors tend to attract far more publicity even if they are not disproportionate in number.  Extra scrutiny is therefore to be expected.

The EHRC guidance related to preventing third-party harassment is also particularly relevant for the creative industries. Many businesses operating in the creative sector (and especially Film & TV businesses) will have significant involvement with third parties, which could include co‑producers, commissioners, financiers, members of the public on location, collaborators and more (including even large parts of the workforce, where these are engaged on an independent contractor basis). Businesses in this area will need to give proper thought to what the risks might be with these relationships and take appropriate steps to address them.

Most businesses are keen to do what they can to prevent misconduct in the workplace so if the new rules help provide a nudge towards best practice then hopefully we’ll start to see reports of poor behaviour become less regular. However, there is always the concern with legislation like this given that an assessment of what is ‘reasonable’ will ultimately be left to an employment tribunal, and there is clearly scope for this issue to be weaponised by claimant lawyers.

Time will tell as to how this all shakes out. We’ll be keeping a very close eye on developments.