Sexual harassment: revisiting the duty to prevent
29 September 2025
It is now almost a year since employers were put under a new duty to “take reasonable steps” to prevent the sexual harassment of their employees.
Our overview of the new duty is here (as published on 7 October 2024; the article is still accurate). In the article, we summarized the Equality and Human Rights Commission’s (EHRC’s) eight recommendations for taking reasonable steps to prevent sexual harassment, and we recommend that employers revisit these. Where a sexual harassment claim succeeds, a Tribunal may increase compensation by up to 25% if it finds that the employer has failed to take reasonable steps in prevention.
Since the new duty came into force, the EHRC has published a checklist and action plan for employers to use. This guidance was originally designed for the hospitality industry but can be adapted to a wide range of working environments. It is likely to be a useful starting point for many employers.
As far as we are aware, there have not yet been any Tribunal decisions taking account of the new duty to prevent sexual harassment. This is unsurprising, given that typically, in the current Tribunal system, the interval between a complaint arising and a final judgment is at least 18 months, and can be substantially longer.
There have been other relevant developments over the course of the last year. In August 2025, the EHRC entered into a Section 23 agreement with the Lidl supermarket chain, following a Tribunal finding that Lidl was liable for the sexual harassment of a young female employee between 2019 and 2021. A Section 23 agreement is a legally binding agreement to take specified steps to comply with the Equality Act 2010. The EHRC may offer such an agreement to an employer as an alternative to other enforcement action, such as an investigation or an application for an injunction. In this case, Lidl had not conducted any sexual harassment risk assessments, had not made its managers aware of the company’s anti-harassment policy, and had relied on employees to submit complaints before it took any action to prevent sexual harassment.
A similar agreement has been in place with the McDonald’s fast-food chain since 2023. Following a series of well-publicized BBC reports of sexual harassment at McDonald’s restaurants, and around 300 further independent complaints to the EHRC, the EHRC wrote to McDonald’s in March 2025 to threaten further enforcement action unless it took appropriate preventative action.
Generally, an employer will be liable for any act of discrimination or harassment committed by their employees in the course of their employment, unless they have taken all reasonable steps to prevent it. Many of the most damaging recent allegations against McDonald’s as reported by the law firm Leigh Day, which is instructed by over 700 McDonald’s staff in a pending group action, are of acts of harassment or sexual harassment by McDonald’s managers, such as offering extra shifts to junior staff in return for sexual favours. If such allegations are proven, one of the questions which may be before the courts is whether the policy improvements which McDonald’s say they have implemented since 2023 were adequate to meet the “all reasonable steps” criterion.
Employers should also be aware that their liabilities in this area are very likely to be expanded under the current Employment Rights Bill (ERB). As drafted, the ERB:
Requires employers to take “all reasonable steps” to prevent sexual harassment;
Makes employers liable for all acts of harassment (sexual or otherwise) carried out against employees by third parties, unless they have taken “all reasonable steps” in prevention;
Gives the Government powers to make regulations specifying what reasonable steps an employer should carry out to prevent sexual harassment;
Gives complainants of sexual harassment protection as whistleblowers;
Renders void any confidentiality clause or NDA (for example, in a settlement agreement or employment contract) in relation to any allegation of discrimination or harassment, unless the agreement is an “excepted” agreement. It is not yet clear how agreements will be deemed “excepted”, but the Government has twice suggested that where the worker requests a confidentiality clause, the agreement will be excepted.
For an overview of when these changes are likely to take effect, see our article here.
The ERB changes are significant. The Employment Lawyers Association has argued that the “all reasonable steps” defence will be difficult to run in practice, meaning that employers will effectively be subject to strict liability for any act of sexual harassment carried out by a third party against an employee. The Government has stated in response that taking “all reasonable steps” would be subject to lower expectations in relation to a third party over whom the employer has little control than in relation to a non-third-party, such as an employee. Criticisms of this provision in the House of Lords centred around the concern that employers in the hospitality industry will feel pressure to prohibit their customers from engaging in certain topics of conversation; the Government’s position is that this is a straw man argument, since censoring patrons would manifestly not be a “reasonable step”. The promised regulations may serve to make clearer what will be counted (or not) as a reasonable step, but on the Government’s current timeline, these will not be issued until 2027, i.e., after the new duties come into force, meaning that such matters may be litigated before further guidance is available.
Given the likelihood of increased exposure to liability for third party acts, we recommend that employers review the contracts and policies they have in place with third parties, with a view to remedying any vulnerabilities. For example, it may be possible to negotiate reciprocal warranties and indemnities with clients and contractors covering off liability for third-party acts. It is also advisable to ensure appropriate notifications are made to any third parties attending employer-operated premises or events, setting out the standards of conduct expected of staff and the zero-tolerance approach taken towards sexual harassment.
There has been increased scrutiny in recent years on the use of non-disclosure agreements to “silence” sexual harassment allegations, but the ERB goes further, prohibiting confidentiality clauses in relation to all discrimination and harassment claims. In practice, this will make it much more difficult to settle Tribunal claims or enter into settlement agreements, unless the definition of an “excepted agreement” is broad enough to allow employers to make a without prejudice settlement offer.
It should also be noted that, independently of the ERB, as of 1 August 2025, regulated higher education providers are prohibited in England from entering into non-disclosure agreements with staff, members, students or visiting speakers in relation to any complaint of sexual abuse, sexual harassment, sexual misconduct, or any other type of bullying and harassment.
The available evidence suggests that sexual harassment at work is still widespread. A survey published by Cardiff University in April 2025 asked 5,469 employees whether they had been sexually harassed at work in 2023-24. Overall, 2.4% of surveyed employees said they had. However, the figure was significantly higher for women (4.1%), and higher still for women under the age of 35 (6.7%). LGBTQ+ employees also reported high levels of sexual harassment at work (6.1%).
Some surveys suggest the true figures may be far higher. In July 2025, Unite the Union released the results of a survey which took responses from 6,615 female members, of whom:
25% reported having been sexually assaulted at work, by a colleague, or otherwise in the course of their employment.
56% reported being subjected to sexually offensive jokes.
55% reported being subjected to unwanted flirting, gesturing or sexual remarks.
43% reported having been inappropriately touched.
28% reported having been sent/shown pornographic images by a manager, colleague or third party.
8% reported having been sexually coerced.
75% of those who reported having been sexually harassed stated that they had not reported the incident.
It should be noted that the responses to the Unite survey, unlike those in the Cardiff survey, were not limited to instances in the previous year only. While the Cardiff survey was stratified by socio-economic indicators, in an attempt to survey a cross-section of society, the Unite survey inevitably captured the state of work in more heavily unionised sectors. Unite notes in the press release that accompanied their survey that sectors with particularly high levels of reported sexual harassment include construction, civil aviation, transport, hospitality, agriculture, road transport, warehousing and logistics.
How we can help
For further information, please contact the team at Synchrony Law.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.