New Duty to Prevent Sexual Harassment in the Workplace: A Guide for UK Employers

Part one: what is sexual harassment?

The new duty to take reasonable steps to prevent sexual harassment in the workplace came into force in October 2024. Employers now have a special duty to take proactive steps to reduce the risk of sexual harassment of their workers and employees, whether by their colleagues, customers or third parties. In this series of articles, we provide guidance on key concepts and best practice for employers in complying with the new duty.

For an overview of the new duty to prevent sexual harassment and practical steps for employers, please see the following article available on our website:

New Employer Duty to Prevent Sexual Harassment at Work: Effective 26 October 2024

A key starting point for employers in understanding and taking action to comply with this duty is an understanding of what actually constitutes sexual harassment. In this first article in our series we look at some useful lessons from Equality and Human Rights Commission (EHRC) guidance and case law.

Understanding the Legal Definition of Sexual Harassment

Sexual harassment has a specific definition under section 26(2) of the Equality Act. It occurs when someone engages in “unwanted conduct of a sexual nature” and the conduct has the purpose or effect of violating another person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them (I will refer to this here as the “proscribed effect”).

What Constitutes "Conduct of a Sexual Nature" in Sexual Harassment

Conduct includes verbal, non-verbal and physical conduct. The EHRC lists in its Technical Guidance examples of conduct which would be sexual in nature, including sexual jokes, displaying and sending pornography, suggestive looks and gestures, sexual posts or contact via social media, text or email, questions about a person’s sex life, discussing ones own sex life, making promises in return for sexual favours, spreading sexual rumours about someone, touching and unwelcome sexual advances. 

When considering whether conduct is sexual in nature, tribunals and courts will examine the facts of each case on a common-sense basis. Case law and guidance indicates some useful insights:

• There is no need for the conduct to be sexually motivated. The motivation might be to ridicule or amuse other colleagues but could still be conduct of a sexual nature if it has a sexual content or overtone.

• There is no need for the perpetrator to be of the opposite sex to, or of the same sexual orientation as, the victim. For example, sexual harassment can occur where the victim and perpetrator are both heterosexual males where sexual jokes or inuendo are unwanted and have the proscribed effect on the victim.

• Conduct of a sexual nature can include pressurising a colleague to have a sexual relationship with someone else.

• Physical contact may be conduct of a sexual nature depending on which part of the body is touched, how it is touched, and the wider context of the contact. For example:

  • A female team leader massaging a colleague’s shoulder while he sat at his desk was found not to be sexual in nature – the contact was found to be limited to a “gender-neutral” part of the body, it took place in an open plan office in the context of praising the colleague for his work, and did not include moving her hands up and down his back which would have been sexual in nature (Raj v Capita Business Services Ltd (EAT)). For more details, see our 2019 article on this case on our website: Female manager's shoulder massage of male team member was not sexual harassment.

  • A man intentionally touching the front of a woman’s body is likely to be found to be sexual in nature (Sela v Ainsworths (London) Ltd (ET)).

  • Tribunals and courts will focus on the alleged unwanted conduct as a whole (for example conduct including both sexualised language and touching which might not be sexual in nature); and the question of whether the perpetrator intended the physical contact to be sexual is not relevant to the court’s consideration of whether the contact is sexual in nature (R (on the application of Chief Constable of Dyfed Powys) v Police Misconduct Tribunal (High Court)).

Does Gender Bias Influence Sexual Harassment Cases?

Case law perhaps reflects the fact that men are perceived to be more likely to carry out sexual harassment than women. For example, a diminutive older female manager was found not to have carried out conduct of a sexual nature when touching a younger male colleague on the hip / lower back (Kalomoiris v John Lewis plc (ET)). However, this potential cultural bias is something which employers should be alert to when considering whether the conduct of female staff could potentially be sexual harassment.

The Importance of Victim Perception in Sexual Harassment Claims

As with all forms of harassment, the intentions of the perpetrator are not conclusive. There are many examples, including high profile cases reported recently in the media, where the person accused of harassment makes clear that they had no intention to make anyone feel uncomfortable and that they were engaging in light-hearted banter which they thought was acceptable. The accused person might insinuate that the complainant is overly sensitive.

When considering whether conduct has had the proscribed effect on the victim, tribunals and courts will take into account:

• the perception of the victim;
• the other circumstances of the case;
• whether it is reasonable for the conduct to have the proscribed effect.

The other circumstances of the case will be taken into account when examining what the victim perceived and whether that perception was reasonable. The EHRC Employment Code lists a number of potentially relevant circumstances including the victim’s mental health and capacity, cultural norms and previous experience of harassment, as well as the environment in which the conduct takes place. Other relevant circumstances might include the relative positions of the individuals in the hierarchy of the organisation.

Employers can provide guidance in their policies on what will count as sexual harassment, but employers cannot rely on fine judgement calls as to whether an employee is likely to be overly sensitive to particular conduct. Employers cannot possibly know all the relevant circumstances of their employees which might lead a tribunal to conclude that they were reasonable to react in the way they did. Employers will therefore need to err on the side of caution when setting expectations for staff conduct. 

Sexual harassment or harassment relating to sex?

It is important to note that many incidences of unwanted conduct of a sexual nature might also be unwanted conduct relating to sex. This means that an employee could bring both of these claims in tribunal relating to the same facts.

Case law suggests that a comment, for example about a woman’s breasts could be both sexual harassment and harassment relating to sex, whereas a comment about a man’s bald head could be harassment relating to sex, but not sexual harassment as it is not conduct of a sexual nature (Insitu cleaning Co Ltd v Heads).

It should be noted that the new duty to prevent sexual harassment only applies to conduct of a sexual nature. It does not impose a new duty on employers to prevent harassment relating to sex or any other protected characteristic. However, employers should of course already be taking steps to mitigate the risk of all forms of harassment against employees as part of their health and safety obligations and duty of care to their employees.

Employers should also be aware that a failure to comply with the new duty can lead to an uplift of up to 25% in any tribunal awards for successful discrimination claims (whether relating to sexual harassment or otherwise).

Next steps for employers

Many employers will already have taken steps to educate themselves on the new duty and create an action plan to put in place reasonable steps to prevent sexual harassment. Please do not hesitate to contact the employment team at Wrigleys if you would like support with creating and implementing policy or reviewing your proposed action plans and risk assessments.

The EHRC has published a useful Employer 8-step guide to preventing sexual harassment at work which is a good starting point.

Readers should look out for our next article in this series which considers the duty to prevent sexual harassment of staff by third parties such as customers, clients and service users.

Readers can also sign up to our upcoming virtual Employment Brunch Briefing webinar on the new duty to prevent sexual harassment on 4 February 2025. Please book your place at: https://www.wrigleys.co.uk/events/detail/wrigleys-employment-brunch-briefing-february/.