By Nick Benson, below, business lawyer, Arbor Law
In late 2024, a new statutory provision came into force to further protect UK employees from sexual harassment. Now, employers have a duty to anticipate when sexual harassment may occur and take steps to prevent it. The introduction of a proactive legal duty of employers to prevent sexual harassment (Section. 40A Equality Act 2010 (EQA)) signifies a new era in worker rights. This legislative change signals a cultural and legal shift from responding to incidents after they happen to actively working to stop them before they occur.
Under pre-existing legislation (s. 109(4) EQA), employers could defend sexual harassment claims, by showing they had taken “all reasonable steps” to prevent it. But, often, this translated into a generic policy in the company handbook and a one-off training session.
This is no longer enough. Employers are now expected to embed prevention into the workplace with ongoing, meaningful actions that genuinely reduce the risk of harassment.
According to the Employment Rights Bill, currently going through Parliament, the Government will introduce further changes, to bolster the new obligations, in the next year or so. First, there will be a stronger legal standard. The phrase “all reasonable steps” will replace the current wording of ‘reasonable steps’, eliminating ambiguity and a reliance on “some” reasonable steps. This tighter standard brings the law into line with the broader provisions of the EQA.
Second, the new law will reinstate the right for an employee to bring a standalone claim for sexual harassment by a third party. This right was taken away, by the Coalition Government, in the Enterprise and Regulatory Reform Act 2012. Its reintroduction will mean that employers are again responsible for shielding their staff from inappropriate conduct by customers, clients or contractors — not just colleagues. This closes a gap in the law that had left many workers, especially those in public-facing roles, without adequate safeguards.
Third, complaints of sexual harassment will be classed as protected disclosures, under whistleblowing legislation. This will give employees legal protection from retaliation if they raise concerns about harassment, ensuring they can speak up without fear of dismissal or victimisation.
The seeds of the EQA 2010 were sown in much earlier legislation, (1975 for sex discrimination and 2005 for sexual harassment). However, the Harvey Weinstein scandal, the publication of reports about the culture of the Metropolitan Police, following the murder of Sarah Everard and the recent findings of an inquest into the suicide of a female soldier, Jaysley Beck, have brought into sharp focus how some sectors and institutions have failed to address systemic issues.
The current Government has acknowledged that the existing EQA provisions haven’t gone far enough. While it’s not possible to legislate away all misconduct in private life, the government can raise standards within the workplace and, by doing so, influence broader societal expectations.
Next steps
Although the legal concept isn’t entirely new, it now applies in a more proactive, universal way. Employers must now assess and take steps to mitigate against the risks of sexual harassment, like they already do in relation to health and safety.
In practical terms, this means organisations should revisit their sexual harassment policies and ensure they’re relevant to their specific workplace and visibly backed by leadership. Complaint procedures need to be inclusive, allowing concerns to be raised not just by victims but also by witnesses or anyone who becomes aware of misconduct.
When complaints are made in good faith, they must be taken seriously, with protections similar to those granted to whistleblowers.
Employers should also look inward and assess their risk factors. This includes identifying high-risk environments such as lone working, night shifts or alcohol-fuelled events, and putting sensible safeguards in place. Training should reflect real risks within the organisation’s sector and be based on the findings of its own risk assessments.
Large organisations may want to track internal data to assess how effective their efforts are, looking at complaint volumes, engagement with training or staff feedback. Smaller employers may not have the same resources, but even basic steps like documenting identified risks and taking preventive action can make a difference.
Managers have a crucial role in spotting early warning signs. They need to understand the less obvious indicators of harassment, such as avoidant behaviour or a spike in sick leave, and be trained to address concerns discreetly and appropriately.
Unfortunately, employers won’t truly know whether their efforts meet the new standard until a case is tested at a tribunal. That legal uncertainty can be frustrating, but it highlights the need to take steps now, especially in industries where the consequences of failure go beyond legal liability to real reputational harm.
Enforcement and financial risk
At present, employees can’t bring a standalone claim against an employer for breaching the new preventive duty. However, enforcement can still occur. The Equality and Human Rights Commission has powers to investigate and act against employers, even in the absence of a complaint. More commonly, if an employee brings a harassment claim and the tribunal finds that the employer failed to comply with the new duty, a 25 per cent uplift in compensation may be awarded.
That uplift is far from symbolic. Since compensation for sexual harassment is already uncapped, a 25 per cent increase could lead to a substantial financial penalty, not to mention the reputational damage that comes with a tribunal finding.
If the Employment Rights Bill becomes law, we may also see a further shift towards granting individuals the right to bring direct claims under this duty. The same bill could extend the preventive obligation to cover all forms of discrimination under the EQA, not just harassment of a sexual nature.
Sexual harassment isn’t just a legal issue — it’s a cultural one. Employers can no longer get by with passive policies and vague commitments. Much like health and safety, preventing harassment requires constant attention and leadership. With broader discrimination laws potentially on the horizon, now is the time to move from intention to action.