The Duty Worker Protection Act 2023, an amendment to the Equality Act 2010, came into force on 26 October 2024, and requires employers to take reasonable steps to prevent sexual harassment of their employees. Whilst a necessary addition to the laws protecting people in the workplace, do they reflect today’s technology-dominated, remote workplace?
Whilst COVID19 revolutionised the way we work, the reality is many work flexible hours predominantly from home, required to build relationships with colleagues, customers, suppliers and contacts remotely, relying on digital-based communication and being constantly connected to technology.
The lines between work and personal time are blurred like never before.
The 24/7 tech presence in lives has exploded online accessibility, and triggered a breeding ground for technology-enabled sexual harassment in the ‘virtual workplace’.
In the wrong hands, digital tools and platforms are used to engage in sexually inappropriate or technology-facilitated sexual harassment, from cyberstalking and sending unsolicited explicit content, to inappropriate messages.
A Freedom of Information (FOI) shows that 7,245 sexual discrimination disputes were reported to ACAS in 2024 - a 6.2% increase from 2023. Within those reports, 878 (16%) in the last nine months mentioned “sexual harassment” or “harassment”. Further, it is reported ACAS received 803 calls from employees in Q3 of 2024, representing a 59% increase from Q2 2024. Employer calls to ACAS also rose, by a staggering 164% following implementation of the Duty Worker Protection Act in Q4 of 2024.
The new Act goes some way to address the advances in technology, but it doesn’t go far enough because it doesn’t account for the increased use of and access to digital communication tools, or hazy work/personal life boundaries.
Defining workplace sexual harassment
Sexual harassment is unwanted conduct of a sexual nature that has the purpose or effect of either violating an individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual; and the individual is treated less favourably because they submitted to or rejected the unwanted conduct.
The conduct need not be sexually motivated, only sexual in nature. It can be sexual harassment if that behaviour has one of these effects, even if not intended. An individual can experience unwanted conduct from someone of the same or different sex.
Conduct ‘of a sexual nature’ includes:
- sexual comments or jokes
- displaying sexually graphic pictures, posters, or photographs
- suggestive looks, staring or leering
- propositions and sexual advances
- making promises in return for sexual favours
- sexual gestures
- intrusive questions about a person’s private or sex life or a person discussing their own sex life
- sexual posts or contact on social media
- spreading sexual rumours about a person
- sending sexually explicit emails or text messages
- unwelcome touching, hugging, massaging, or kissing.
Sexual interaction that is invited, mutual or consensual is not sexual harassment because it is not unwanted. However, sexual conduct that has been welcomed in the past can become unwanted.
At work, the Equality Act 2010 protects employees, workers, self-employed people hired personally to do the work, contractors, and job applicants. The amendment to the law states employers must take reasonable steps to prevent sexual harassment from happening in the course of an employee’s employment.
Responsibility for preventing harassment now lies squarely with employers.
This preventative duty requires employers to take positive and proactive reasonable steps to prevent sexual harassment of their employees. It only applies to sexual harassment, and employers need to take reasonable steps to prevent sexual harassment by their own workers, and third parties such as customers and suppliers, towards their own employees in the course of employment.
Whilst employers can be held responsible for workers’ actions through vicarious liability, anyone sexually harassing someone at work or in the course of their employment, is also responsible for their own actions; discrimination complaints including sexual harassment, and tribunal claims, can be made against individuals as well as the employer.
If defending a sexual harassment claim by a worker, employers can only rely on the ‘reasonable steps’ defence, i.e. the employer took reasonable and preventative steps to stop/prevent sexual harassment of their workers. Whether the employer knew about the harassment is irrelevant.
Although the preventative duty includes third party harassment, a worker cannot bring a stand-alone claim in the employment tribunal for third party harassment.
The anticipated Employment Rights Bill introduces further changes to current workplace harassment laws. When introduced, employers will be required to take all reasonable steps to prevent sexual harassment, and it introduces liability for third party harassment on employers for all types of harassment. Disclosures about sexual harassment will be classified as “protected disclosures,” granting protection to those reporting under the whistleblowing regime.
Workplace reality
Historically, sexual harassment is underreported. But the Duty Worker Protection Act 2023, amendment to the Equality Act, has increased awareness.
Employees are calling out inappropriate behaviours, especially digitalised sexual harassment. These complaints are frequently of inappropriate comments on workplace WhatsApp groups, conversations on MS Teams and company online messaging platforms, and inappropriate emails. This form of harassment uses technology to invade work and personal boundaries through email, instant messaging, social media, video calls, voice notes and other online communication methods.
In the last 18 months, we have seen a significant increase in the number of enquiries from HR professionals about technology-facilitated sexually inappropriate or harassing behaviour reported in their workplace
In one case, two employees of the opposite sex engaged in “banter” using the employers’ MS Teams instant messaging. Both parties appeared to be regularly engaged in the banter throughout the workday, with the online chat riddled with sexual innuendos and flirtatious behaviour from both parties. The messages had also appeared on WhatsApp and included picture messages. This had been happening for a significant time before it was reported. One of the employees involved complained only after the messaging stopped.
In another case, a female employee complained about inappropriate messages between male colleagues in a WhatsApp workplace group for managers, later extended to a group on the employers’ internal instant messaging system. This had been going on for a significant time and the female employee did not complain until questions were raised about her performance.
In both these cases, the employers had policies, procedures and training in place. However, importantly these were generic policies for IT and Communications, Email including etiquette, Equal Opportunities, Bullying and Harassment in the Workplace.
Significantly, none of the policies reflected nor addressed the changes and advances in technology and the way we live and work.
The lesson is that policies governing workplace conduct must specifically address the current digital landscape, the requirements the new law has placed on the employer to prevent exactly this type of behaviour, and set out the employers’ “reasonable steps” required by the law.
How to modernise workplace policies
Harassment at work can have a significant and long-lasting impact on the worker, the employer, and the wider workforce.
In reality, harassment is going to happen, so employers must take action to change workplace behaviours and eradicate harassment from the workplace by taking practical steps and ensuring management and senior leaders take-on a critical role championing a positive and inclusive workplace.
Simple guidance to get started:
- Do not wait until there is sexual harassment incident, instead be proactive and anticipate scenarios when workers may be subject to harassment.
- Develop an effective anti-harassment policy which includes a section about third party harassment.
- Review all policies relating to the use of technology and communications with employees, customers, suppliers etc. Include WhatsApp, MS Teams, emails, Apps, and any other form of messaging/communication services used by employees. Policies must cover appropriate methods of communication, and state timings of communication, content, and the company’s position on WhatsApp groups.
- Engage workers. Ensure regular contact, operate open door polices, conduct regular 1-to-1’s, carry out staff surveys (anonymously if needed), and ensure comprehensive exit interviews for leavers.
- Conduct a risk assessment. This should consider what situations (including technology) may increase the likelihood of sexual harassment and steps to minimise them.
- Implement a reporting system (outside the grievance process) that allows workers to raise an issue either anonymously or by name, ensuring central records are kept confidentially, so any patterns can be identified.
- Train workers, including management. Training should include what sexual harassment in the workplace is, what to do if it is witnessed or experienced, and for management, how to handle complaints of harassment. Also, consider training in banter, the appropriate use of communications systems, and how these ‘personal spaces’ include the workplace.
- Regularly monitor and evaluate actions, review policies and procedures, review any complaints, undertake regular mandatory training, and continue to undertake the risk assessment.
The Equality and Human Rights Commission has published a ‘Preventing Sexual Harassment at Work’ 8-Step guide for employers, which summarises their guidance on harassment and sexual harassment at work.
Written by Emma-Louise Hewitt, Head of the Employment Law team at Sydney Mitchell.
A version of this article was first published in the April issue of The HR Director
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