Worker Protection Act 2023: Employer Harassment Duty

The Worker Protection (Amendment of Equality Act 2010) Act 2023 inserted a new section 40A into the Equality Act 2010. From 26 October 2024 employers must take "reasonable steps" to prevent sexual harassment of workers in the course of their employment.

This is a proactive, anticipatory duty. Employers must consider what could foreseeably happen and take pre-emptive action; they cannot wait for a complaint and only act then. The duty is judged objectively against what a reasonable employer in the same situation would have done.

The duty covers harassment by other workers and harassment by third parties — clients, customers, contractors, members of the public, patients, students, etc. Sectors with the highest third-party harassment exposure (hospitality, retail, healthcare) need to think carefully about lone-working, customer behaviour policies, and training for managers in handling third-party incidents.

The original Bill went further and would have required "all reasonable steps", but Parliament softened it to just "reasonable steps" during passage. Either way, doing nothing is not enough.

The Equality and Human Rights Commission published updated technical guidance alongside the Act coming into force, setting out the steps it expects to see. These include:

• A clear written policy on sexual harassment, distributed to all workers and easily accessible (intranet, staff handbook, induction pack).
• Risk assessment for sexual harassment in the workplace, including third-party risk in customer-facing roles, isolated working, and after-work events.
• Training for all workers on what sexual harassment is, how to report it, and what to do if they witness it. Refresher training at sensible intervals.
• Confidential reporting routes with at least one option that bypasses the worker's line manager.
• Investigation procedures that take complaints seriously, act on them promptly, and protect the complainant from retaliation.
• Active monitoring — exit interviews, pulse surveys, anonymous reporting platforms — to spot patterns the employer would otherwise miss.
• Action on findings — not just disciplining the harasser, but also reviewing why the behaviour happened and changing systems if needed.

Step-counting alone is not the test. The EHRC will look at whether the employer's combined steps were proportionate to the size of the organisation, the resources available, and the risks identified.

If a worker brings a successful sexual-harassment claim under the Equality Act 2010 and the tribunal finds the employer breached the new section 40A duty, the tribunal can increase the compensation award by up to 25%. This is an uplift on the harassment compensation, not a stand-alone award.

In practice this means an employer who failed to put in place reasonable preventive steps could pay an extra quarter on top of an already substantial award — including injury to feelings (Vento bands range from £1,200 to £58,700+ depending on severity), loss of earnings, and aggravated damages where the employer's conduct made things worse.

The uplift applies even if the harassing conduct was carried out by a colleague the employer would not have foreseen, provided the absence of reasonable preventive measures was a contributing factor. The duty is anticipatory: the employer cannot defend by saying "we didn't know about this person".

This is in addition to the existing Equality Act remedies for harassment and the unlawful-detriment / dismissal protections under sections 47B and 103A ERA 1996 (whistleblowing) where applicable.

The Equality and Human Rights Commission is the regulator with enforcement powers under the Equality Act 2006 and 2010. For the s.40A duty the EHRC can:

• Conduct a formal investigation and require evidence;
• Issue an unlawful-act notice requiring the employer to put an action plan in place;
• Apply to the courts for an injunction to enforce a notice;
• Enter into a binding agreement with the employer to take specified steps.

Workers cannot bring a stand-alone tribunal claim for breach of the s.40A duty itself. The duty bites in two ways: through the EHRC's enforcement powers (no individual remedy), and through the tribunal compensation uplift if a successful Equality Act harassment claim is also being brought.

If you have experienced sexual harassment at work:

1. Record what happened in writing — dates, times, who was present, what was said or done.
2. Report through your employer's policy. If your employer has not given you a policy or fails to act, that is itself evidence of breach.
3. Consider raising a formal grievance, with the explicit reference to s.40A and the EHRC technical guidance.
4. Get advice from ACAS (free), Citizens Advice, or a regulated employment-rights solicitor before considering a tribunal claim. Time limits are 3 months less 1 day from the act of harassment (with an ACAS Early Conciliation extension).