What is harassment?
Harassment is defined within the Equality Act 2010 as unwanted conduct related to a relevant protected characteristic (age, disability, gender reassignment, race, religion or belief, sex, sexual orientation) which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Sexual harassment is defined as unwanted conduct of a sexual nature with the above purpose or effect.
Understanding the current duty on employers
Under existing legislation, employers (including those for who they are vicariously liable) must not harass employees or job applicants in relation to employment. They must also take reasonable steps to prevent sexual harassment of their employees (‘the preventative duty’).
Whilst there is no set list of actions that should be taken by employers in respect of the preventative duty, ACAS and the Equality and Human Rights Commission (‘EHRC’) propose potential steps such as:
- developing an effective anti-harassment policy;
- engaging with staff;
- implementing reporting systems;
- delivering training; and
- acting immediately to resolve complaints.
Why does compliance matter?
Employers may be subject to complaints in the Employment Tribunal where employees or applicants consider they have been harassed. Such complaints can result in compensatory awards being made against the employer. Where employers are found to have failed in their preventative duty, any compensation may be uplifted by up to 25%. Not only may this have a significant financial impact, but it could also lead to reputational damage.
The EHRC can also take enforcement action against employers which may include:
- conducting investigations where the EHRC suspects unlawful behaviour;
- issuing an unlawful act notice, requiring an employer to prepare an action plan and making recommendations;
- entering a ‘section 23 agreement’ in which an employer makes certain undertakings aimed at avoiding further non-compliance;
- seeking injunctions/interdicts; and
- assisting, instituting, or intervening in legal proceedings in relation to the Equality Act 2010.
Employees who bring claims against their employer in the Employment Tribunal may also be entitled to an uplift in compensation where the employer is found to have breached the preventative duty.
As well as the possibility of facing legal action, employers should bear in mind that the EHRC considers everyone has a right to feel safe and supported at work. Failing to deal with sexual harassment in the workplace can have a damaging effect on workers’ mental and physical health which may impact them across their personal and working life. This can in turn have a negative impact on workplace culture and productivity.
Challenges for employers
Although the guidance provided by ACAS and the EHRC provides some assistance to employers in relation to the preventative duty, the lack of clear requirements which amount to ‘reasonable steps’ can present some difficulty for employers who are seeking to ensure they are compliant with their legal obligations.
What is reasonable for one employer may not necessarily be reasonable for another.
Reform
With an anticipated start date of October 2026, the Employment Rights Act (‘ERA’) (which came into force in December 2025), will amend the preventative duty so that rather than employers being required to take “reasonable steps”, they will now be required to take “all reasonable steps” to prevent sexual harassment of employees.
It also proposes to include a duty that employers must not permit third parties to harass an employee. Employers will be considered to have permitted this if the harassment happens in the course of the employee’s employment and the employer has failed to take all reasonable steps to prevent the third party from doing so.
Impact on employers
The requirement to take “all reasonable steps” to prevent harassment and sexual harassment is a high bar. It won’t simply be enough for employers to demonstrate that they have implemented some measures to tackle the issues. It will be necessary to show that any reasonable step that could have been taken, was taken.
Employers are encouraged to carry out risk assessments considering the risks of harassment and sexual harassment happening in their organisation and the steps they could take to reduce those risks, before then assessing which of those steps are reasonable in the circumstances.
Specific circumstances which may alter the reasonableness of any given step may include the size of the organisation and its available resources.
Employers will need to consider much wider risks associated with any members of the public that come into contact with their employees. For example, employees may be the victim of harassment over the telephone or email. If reasonable steps could have been taken to prevent this and they were not, the employer will be considered to have permitted its occurrence.
Debate around these changes has raised concern as to the potential negative impact on freedom of speech. Although the former government had proposed potential exceptions in relation to political, moral, religious or social opinions, the Government has suggested that this is not necessary because disproportionate interference with a third party’s right would not be considered a ‘reasonable step’.
This leaves the matter open for employers who may be tasked with balancing their preventative duties with the rights of third parties.
If you would like to discuss anything raised in this blog regarding any form of harassment or indeed anything else affected by The Employment Rights Act, please contact a member of the Employment team.
To find out what other aspects of employment law are affected by the Employment Rights Act, read our blog “The Employment Rights Act – When to expect change”.
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