The Sexual Harassment Prevention Duty: One Year of Reasonable Steps (And More Steps Coming)

Since 26 October 2024, UK employers have been legally required to take 'reasonable steps' to prevent sexual harassment of their employees. As we mark the first anniversary of the Worker Protection (Amendment of Equality Act 2010) Act 2023 coming into force, now is an opportune moment for employers to review their compliance with the duty.

Understanding the duty

Section 40A(1) of the Equality Act 2010 (Equality Act) creates a proactive obligation: employers must take reasonable steps to prevent sexual harassment of employees in the course of their employment. This marks a fundamental shift from reactive responses to anticipatory action.

This is not a one-off compliance exercise. The Equality and Human Rights Commission’s (EHRC) guidance on the duty makes clear that employers must take positive, proactive steps in advance of any claims and maintain constant auditing. The duty covers harassment from third parties, including clients, customers and suppliers - not just fellow employees.

The consequences of non-compliance are significant (and we're not just talking about awkward HR meetings). Employment tribunals can increase compensation awards by up to 25% where employers breach this duty, and the EHRC has a range of powers including imposing binding agreements, launching investigations or seeking injunctions.

The impact: 12 months on

Sex discrimination claims before employment tribunals have increased considerably compared to previous years (from 457 in 2023/4 to 1,375 in 2024/5). The section 40A(1) duty, as well as other prevalent news stories on the issue of sexual harassment, appears to have emboldened employees to voice their concerns and bring employment tribunal claims whilst simultaneously raising the stakes for employers who fail to act preventatively. 

At the same time, the EHRC has demonstrated its willingness to intervene where the duty is not respected and use its enforcement powers. Recent action by the regulator includes requiring companies that have failed in their duty to enter into a legally binding agreement under which they commit to strengthen anti-harassment measures and protect staff from sexual harassment and, where necessary, writing to companies to remind them of their legal obligations. 

Looking ahead: further changes on the horizon 

The Employment Rights Bill proposes to further strengthen the duty, with two key changes employers should prepare for:

1. From 'reasonable' to 'all reasonable' steps

   The proposed amendment would require employers to take 'all' reasonable steps to prevent sexual harassment; a significantly higher bar. What constitutes 'all reasonable steps' will depend on factors including employer size, resources, working environment and identified risks, but tribunals will need to clarify the practical implications.

2. Reinstating third-party liability

   The Bill proposes to reintroduce direct employer liability for third-party harassment across all protected characteristics, a provision previously removed from the Equality Act in 2013. Employers would become liable for harassment by third parties against their employees where they failed to take 'all reasonable steps' to prevent it.

Practical Steps for Employers 

As this is an ongoing duty, the 12-month anniversary provides an ideal opportunity to refresh compliance measures, including:

• Risk assessment - Conduct a risk assessment specific to your business, workforce and environment. A recent legally binding agreement mentioned above, for example, committed the company to running a staff survey on sexual harassment. Generic approaches won't suffice; identify the actual risks in your organisation. Common risk areas identified over the last year include the use of messaging platforms for workplace communications, the availability of alcohol at work events, and lone workers or employees with exposure to third parties. These areas require careful consideration and fact-specific approaches depending on the organisation, roles and sector.
• Targeted training - EHRC guidance requires training on the three types of harassment, what to do if workers experience it, and how to handle complaints. Effective approaches include moving away from tick-box training towards in-person, tailored training that examines case studies, which includes specific bystander intervention training and focusses on the workplace damage caused by sexual harassment. Training should be tailored to your policy and environment, with ACAS recommending specific training for managers.
• Global considerations - For multinational organisations, avoid one-size-fits-all global policies and training programmes. Different jurisdictions have specific prescribed requirements, and a global approach may fall short of local compliance standards, including those in the UK. Cultural awareness plays an important role in global organisations, and putting efficiencies and cost savings aside in favour of jurisdiction-specific frameworks will provide a more robust foundation for taking action against perpetrators.
• Managing third-party conduct - Implement training and communication for contractors and suppliers to ensure third parties understand expected behaviour standards and the consequences of harassment. Some organisations have reconsidered practices such as allowing guests at social events. Such measures should be considered based on individual risk assessments but do warrant some further thought in light of the duty now on employers to anticipate and act on potential risks.
• Early intervention systems - Establish escalation channels and procedures to intervene before issues escalate. Early intervention can prevent formal complaints and tribunal claims.
• Review - Analyse any sexual harassment incidents from the past 12 months. Look for patterns, identify gaps in your current measures, and implement improvements. For social events, and with Christmas party season around the corner, organisations may want to consider implementing measures such as limited alcohol service rather than open bars, restricting certain types of alcohol, and encouraging earlier event conclusions.
• Documenting - Maintain clear records and evidence of ongoing monitoring and review. Strong documentation will be crucial if you need to demonstrate compliance in a tribunal claim.

The preventative duty represents a fundamental shift in employment law, requiring employers to move beyond reactive responses to proactive risk management. As the legal landscape continues to evolve with proposed amendments strengthening these obligations, employers who treat compliance as an ongoing strategic priority will be best positioned to protect both their workforce and their organisation. 

The anniversary of this duty serves as a critical checkpoint: those who use it to comprehensively review, strengthen and embed their prevention measures will create safer workplaces whilst significantly reducing their legal exposure in an increasingly litigious environment.