Preventing Sexual Harassment in the Workplace – One Year on, what have we learned?

A new statutory duty creating a positive and proactive duty on employers to take reasonable steps to prevent sexual harassment at work was introduced on 26 October 2024. We look at the duty as set out under the Worker Protection (Amendment of Equality Act 2010) Act 2023, review recent cases hitting the headlines, consider the direction of travel under the Employment Rights Bill and ask: what have we learned?

Sexual Harassment and the Equality Act 2010

In most situations, employers are responsible for the actions of their employees whilst they are “at work” – which can include acts of sexual harassment. Sexual harassment occurs where one person engages in unwanted conduct of a sexual nature, in the course of employment, and that unwanted conduct has the purpose or effect of violating another person’s dignity, or creates for them an intimidating, hostile, degrading, humiliating or offensive working environment (see s.26 Equality Act 2010). Individuals are able to bring claims against their employer, as well as named individuals, for acts of discrimination, harassment, and sexual harassment which happened whilst they were at work – remembering the definition of “at work” is wide, so too are the categories of “workers” who can bring claims under the Equality Act 2010. If found liable for acts of sexual harassment (or discrimination or harassment), compensation is potentially uncapped, although the employment tribunal uses the “Vento” bands as a guide when awarding compensation.

The Equality Act 2010 includes a statutory defence employers may avail themselves of. In limited circumstances, employers may be able to show they have taken all reasonable steps to prevent such treatment or actions occurring in the workplace. However, the bar is high, and this defence is rarely successful with many employers choosing not to run the defence as they know it will not succeed. This does not encourage employers to implement good practices to prevent any future acts of sexual harassment in the workplace.

This is where the Worker Protection (Amendment of Equality Act 2010) Act 2023 comes in.

What changed? The Worker Protection (Amendment of Equality Act 2010) Act 2023 (the “Act”)

The new Act didn’t change the Equality Act 2010 and employer liability for sexual harassment at work. However, to encourage employers to take the issue of workplace sexual harassment seriously, (it must be said, with the risk of increased scrutiny and financial penalty), the Act flips the idea of preventing sexual harassment at work on its head. Rather than employers thinking that sexual harassment “won’t” happen here and only reacting after an event or allegation is made, the Act makes employers think that sexual harassment “might” happen here. This places a positive, anticipatory, and proactive duty on employers to take reasonable steps to prevent sexual harassment occurring in the course of employment.

Whilst not a standalone claim, the Equality and Human Rights Commission (EHRC) has new investigatory and enforcement powers regarding sexual harassment allegations at work.

What about third party harassment and sexual harassment?

Although third party harassment is not a standalone claim under the Equality Act 2010 (currently), the new positive and preventative duty does apply to the risks of third-party sexual harassment (i.e. sexual harassment of the employer’s staff by clients, contractors, customers etc.). Third party harassment and sexual harassment would be part of the EHRC’s remit to investigate and impose a sanction so again, this is another critical area of focus for employers.

What are reasonable steps?

To help employers comply with the statutory preventative duty, the EHRC updated its Technical Guidance on sexual harassment in the workplace which also includes an 8-step guide as to the “reasonable steps” employers can take. What is reasonable is an objective test, depending on the size, sector, and workplace.

Whether the employer has indeed taken reasonable steps to mitigate and prevent sexual harassment at work is a question of fact, ultimately for an employment tribunal to decide where a claimant is successful in their claim. In time, we will also have guidance from the Courts and tribunals as to what constitutes reasonable steps, although the backlog of cases in the employment tribunal system is hindering the speed at which cases – and guidance – is coming through.

And the financial penalty?

If a claimant is successful in the employment tribunal and the tribunal find that sexual harassment has occurred to any extent, the tribunal must consider what steps the employer has taken and it has the power to increase compensation by up to 25% if it concludes the employer has not taken the reasonable steps it should have taken to reduce the risk of sexual harassment in the workplace. The amount of the compensation uplift must reflect the extent to which the tribunal considers the employer has breached the duty.

Employers in the news

In 2023 McDonald’s Restaurants Limited entered into a legal agreement with the EHRC concerning preventative measures it agreed to take regarding harassment, sexual harassment, and discrimination in its restaurants. However, media investigations revealed that despite this, it faced around seven hundred legal claims from workers from 450 of its franchise outlets. In March 2025, the EHRC wrote to all of its franchises – who were not party to the 2023 agreement - reminding them of their legal obligations under the Equality Act 2010 and the Act – including in relation to third party harassment. In its letter, the EHRC set out further guidance as to what would be considered “reasonable steps.” To quote from the letter:

“The sort of reasonable steps you should take to comply with the preventative duty include:

• communicating your business’s zero-tolerance approach to sexual harassment
• undertaking regular risk assessments to identify where sexual harassment may occur and the steps needed to prevent it
• ensuring younger and more vulnerable workers are properly safeguarded
• ensuring complaints are dealt with sensitively, and effectively through robust policies and procedures
• being actively aware of what is happening in your workplace and identifying any warning signs, by engaging with staff

It is especially important that younger or vulnerable workers feel able to speak up if they experience or witness discrimination or harassment.”

IKEA, Sainsbury's, Jaguar Land Rover, Fuller’s, and Paradigm Precision have all signed legally binding agreements with the EHRC (referred to as a “Section 23” agreement). More recently (August 2025) LIDL UK signed a Section 23 agreement with the EHRC after an employment tribunal held that it had failed to take all reasonable steps to prevent the sexual harassment of a young female employee by a staff member between 2019 and 2021. In its judgment, the employment tribunal found that Lidl GB managers at the store she worked in were not aware of the company's anti-harassment policy. In addition, no risk assessments had been conducted, and Lidl GB had relied on its employees to submit complaints before any action was taken. This case was decided before the 2023 Act came into force, so did not attract the additional compensation penalty.

Remember too, the reputational damage to businesses as a result of claims and EHRC involvement is significant.

What should employers be doing – and doing now

Employers should look to complete the following action points – and refresh them – as part of this statutory preventative duty:

• Carry out a risk assessment – this is really important and the “key” to the whole preventative duty. Not just one pulled off the internet but one that is properly tailored to suit your business, how your people work and interact. This is a review, or audit, of your business’s risk profile looking at a range of factors and key risk areas.
• Review your sexual harassment policy in light of the EHRC Technical Guidance – I would also suggest reviewing inclusion, disciplinary, grievance, social media, and whistleblowing policies too. All policies should flow together and have the same message/thread throughout. Also revisit Codes of Conduct. Think about how policies are communicated and updated.
• Refresh legal sexual harassment and harassment training for employees, managers and executive/HR teams and run sessions regularly. Training should again suit the audience and the business and should be targeted. The sessions I run are just that – plus they are practical, relevant and reinforce the HR message.
• Have clear processes and different avenues for when (and if) complaints are raised – also “road test” them, do they actually work and can individuals raise concerns easily?
• Ensure that if sexual harassment (and harassment) complaints are raised, they are investigated properly and resolved and also make sure that “lessons learned” discussions are had, and issues are not swept under the carpet. Revisit the above steps too.
• Ensure there is a “top down” approach – this is something which should be on Board agendas – it is not an “HR thing.”
• GAP analysis – review and report on where the gaps might be in terms of your current strategy. Does it meet the baseline EHRC guidance for example, have there been any issues where we need to rethink the approach? Again, ongoing.
• Make sure a senior person has responsibility for discrimination and harassment issues, and for overseeing your harassment policies and procedures.

What next and what have we learned?

The preventative duty is not about absolutes; nothing can ever be 100% “risk free”. However, what the Act does is make employers take a step back and look critically at the business, its gender make-up, power imbalances, whether leaders are aware of the risks and role model good behaviours (especially at social events), its policies, third party risks and complaints procedures and ask: are we doing all that we can do to protect our employees? It is a continuous assessment process.

This will become more focused and employers will be under more scrutiny with the changes proposed to take effect from October 2026 under the Employment Rights Bill to (1) the reasonable steps preventative duty which will change to mirror the statutory defence under the Equality Act 2010 and become a duty to take ALL reasonable steps; (2) the introduction of a standalone third party harassment/sexual harassment claim where an employer has not taken all reasonable steps to prevent third party harassment; and (3) the time limit for bringing an employment tribunal claim increases from three to six months.

There is much to do and focus on. Getting senior leaders and Boards engaged will be key to delivering a consistent and top-down message.