Regulations on sexual harassment in the workplace in the United Kingdom

Sexual harassment in the workplace is prohibited under the Equality Act 2010.

The legal definition of harassment in the Equality Act 2010 is unwanted conduct related to a relevant protected characteristic (such as sex, race or disability) which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Section 26 of the Equality Act 2010 prohibits three types of harassment:

• sex-related harassment ie unwanted conduct related to the protected characteristic of sex which has the proscribed purpose or effect;
• sexual harassment ie unwanted conduct of a sexual nature which has the proscribed purpose or effect; and
• less favourable treatment because of a person's rejection of, or submission to, sex-related harassment or sexual harassment.

The UK’s equality and human rights regulator, the Equality and Human Rights Commission (EHRC), has published technical guidance on sexual harassment and harassment at work as well as guidance on the use of confidentiality agreements (also known as non-disclosure agreements) in discrimination cases which include sexual harassment.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 introduced a duty on employers to take reasonable steps to prevent sexual harassment in the workplace. The duty applies from 26 October 2024. Reasonable steps include carrying out risk assessments, delivering training and providing refresher training, reviewing relevant policies and procedures and ensuring that non-disclosure agreements are used appropriately. Although there is no individual right of action if an employee believes their employer has breached the duty, the EHRC will have power to enforce it and, if a sexual harassment complaint succeeds in the employment tribunals and an employer is found to have breached the duty, compensation may be increased by up to 25%.

Under the Equality Act 2010, an employer can be liable for harassment and they can also be vicariously liable for the actions of employees who harass their colleagues. An employer will not be liable for an act of sexual harassment by an employee where the employer has taken all reasonable steps to prevent it occurring. This will involve implementing similar measures to those outlined above in relation to the duty to prevent. 

Certain public authorities are obliged to comply with the Public Sector Equality Duty (PSED) which requires employers to pay “due regard” to the need to eliminate harassment and discrimination. The PSED means that employers should consciously consider these issues when making decisions. An employee cannot bring a claim for a breach of the PSED, enforcement is via the EHRC, and would not result from a one-off incident of harassment.  

Towards the end of 2017 and during 2018 the #MeToo movement prompted  a noticeable increase in the number of harassment complaints received by our clients, both in the form of internal complaints and legal claims in the employment tribunals. We  also saw  a significant increase in requests to provide training to clients on this issue to drive cultural change in relation to standards of conduct and appropriate behaviours in the workplace and to help employees recognise the types of innocuous behaviours that can constitute harassment. Clients were looking at improving their internal processes for dealing with harassment complaints and refining their investigation procedures and also making it easier for employees to report concerns about harassment. We saw a significant cultural shift and, for example, for the first time in the UK a large professional services firm publicly acknowledged that they had dismissed senior individuals because of their behaviour.

The marked increase in harassment complaints following #MeToo has reduced over time but it remains a focus area for legislators and regulators alike. Several studies have shown that sexual harassment in the workplace remains a common issue and is underreported. These factors led to the introduction of the new duty to prevent sexual harassment contained in the Worker Protection Act.

An individual can bring a claim of sexual harassment in the employment tribunals against their employer (or former employer) and against any individual employee who has harassed them. Compensation for harassment is potentially uncapped. While some very high compensatory awards are made, the average awards tend to be much lower.

We would say this currently sits in the red category, and is a high priority for clients particularly in light of the duty introduced by the Worker Protection Act and an increasing focus on environmental, social and governance (ESG) as a key pillar of corporate strategy. It is also an area where industry regulators (like the Financial Conduct Authority) are taking an active interest which means it is especially high up on the risk agenda for clients operating within regulated sectors.

As well as being an area of legislative and regulatory focus, incidents of sexual harassment in the workplace have also attracted attention from the mainstream media. There have been a number of splashes about incidents of sexual harassment in the workplace involving household name companies. This carries significant reputational risk and one of the trends that has emerged in response to the greater focus on sexual harassment in the workplace is the rise of investigations run by independent third parties such as barristers or law firms. These investigations aim to provide a thorough, impartial and credible assessment of the allegations and the evidence as well as identifying any underlying issues or systemic failures that may have contributed to a culture of harassment.  An external investigation can also enhance the confidence and trust of the employees involved, the media and any regulators as well as other relevant stakeholders in the employer’s commitment to addressing and preventing harassment in the workplace.

There also continues to be a focus on transparency around and the appropriate use of non-disclosure agreements particularly as a result of a campaign committed to ending the use of non-disclosure agreements which has targeted the education sector and has now turned its attention to the financial services sector. As a result, some employers are using confidentiality agreements in more limited circumstances. 

Sectors that have been particularly affected by, or concerned with, allegations of sexual harassment are media and financial services.