This article was first published in First Voice. Written by Hannah Thomas, employment solicitor at FSB Legal and Business Hub.
Content updated 18 September 2024
FSB members should ring the 24/7 legal helpline to discuss legal issues. Unless otherwise stated, the advice on this page applies to England and Wales only.
Sexual harassment is unlawful under the Equality Act 2010. The Act also provides that general harassment against an employee based on a protected characteristic (such as sex or race) is unlawful.
Prior to 26 October 2024, employers in England, Scotland and Wales are under no proactive duty to prevent sexual harassment in the workplace. However, prior to this date, where an incident has taken place and an individual makes an employment tribunal claim, an employer will potentially be liable unless it can show it took “all reasonable steps” to prevent the sexual harassment from occurring.
“Reasonable steps” that provide a defence for an employer may include putting in place an anti-harassment or dignity at work policy, which is enforced in practice and on which staff receive training. FSB members have access to a template dignity at work policy on the FSB Legal and Business Hub.
Shift in focus
From 26 October 2024, new legislation comes into effect in England, Scotland, and Wales, requiring employers to take reasonable steps to prevent sexual harassment in the workplace happening in the first place.
The idea behind the new proactive duty is to shift the focus away from after-the-event liability and towards preventative action. However, unless an employee brings a successful claim for sexual harassment in the employment tribunal, employers will not be liable for financial compensation.
Employers are expected to take appropriate measures to prevent sexual harassment as far as this is reasonable, such as having a clear policy, providing mandatory training, encouraging reporting, conducting regular (anonymous) staff surveys, and monitoring complaints and formal grievances to ensure that they are properly investigated and resolved (by carrying out a reasonable investigation and avoiding jumping to conclusions). Following an investigation and outcome, employers should ensure that the perpetrators are dealt with appropriately (such as through the employer’s disciplinary procedure). This will help employers to identify particular risk areas and ensure effective measures are put in place to minimise those risks.
What are reasonable steps will vary from employer to employer and will depend on factors such as (but not limited to) the risk of sexual harassment occurring, the employer’s size (larger employers may be expected to do more than smaller employers), the sector it operates in, the working environment and its resources.
ACAS has published guidance on the new preventative duty for employers (Preventing sexual harassment - Sexual harassment - Acas). Detailed statutory guidance for employers has been published by the Equality and Human Rights Commission (EHRC)
What actions can be taken against employers who don’t comply?
Where an employee succeeds in a sexual harassment claim, an employment tribunal can increase compensation by up to 25% if the employer has failed to put in place reasonable measures in accordance with the preventative duty. However, an individual cannot bring a claim for a breach of the preventative duty alone.
Additionally, although less commonly, the Equality and Human Rights Commission (EHRC) can take enforcement action against employers who fail to comply with the preventative duty.
Where can you find additional guidance and advice?
Fact sheet guidance for employers on sexual harassment and a template sexual harassment policy is available on the FSB Legal and Business Hub. FSB members can also contact the FSB Legal Advice line to take specific legal advice in relation to their employees.