Sexual harassment duty (Equality Act s.40A)
The new employer duty to prevent sexual harassment under Section 40A of the Equality Act 2010 (in force October 2024) — what employers must do, and what employees can claim.
Quick answer
Section 40A of the Equality Act 2010 (introduced by the Worker Protection (Amendment of Equality Act 2010) Act 2023, in force from 26 October 2024) places a new duty on employers to take 'reasonable steps' to prevent sexual harassment of their workers. The duty is anticipatory — employers must act before any harassment occurs. Breach can lead to a 25% uplift on compensation in any subsequent harassment claim, and Equality and Human Rights Commission (EHRC) enforcement action.
Overview
Before October 2024, employers were liable for harassment by employees and third parties only where it had occurred. The Worker Protection Act 2023 introduced a positive duty to prevent it — section 40A of the Equality Act 2010. This is one of the most significant employment-law changes in recent years. The duty is owed to all 'workers' (a wider category than 'employees'). Failing to take reasonable steps is itself a breach, and triggers automatic 25% uplift on any successful harassment claim. The Equality and Human Rights Commission (EHRC) is the regulator.
Who Can Use This Process
- You are likely eligible to use this guide if your situation involves sexual harassment duty (equality act s.40a).
- You have a genuine legal basis for the matter (contract, tort, statutory right, etc.).
- You have made reasonable attempts to resolve the matter directly with the other party first.
Step-by-Step Process
What is sexual harassment
Unwanted conduct of a sexual nature that has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. Includes verbal, physical, and digital conduct. Source: s.26(2) Equality Act 2010.
Who the duty applies to
All employers. The duty is owed to all workers (including agency workers, contractors). It is an anticipatory duty — you do not need to wait for harassment to occur.
What 'reasonable steps' looks like
EHRC guidance suggests: a written policy specific to sexual harassment, regular training, an effective complaints procedure, risk assessment, monitoring, and senior accountability. There is no fixed checklist — size and resources are factors.
Third-party harassment
From October 2024, employers are again liable for third-party harassment (customers, suppliers) that they failed to take reasonable steps to prevent. This restores liability that had been removed in 2013.
Enforcement and penalties
EHRC can investigate and require employers to take action. Failure can lead to legally binding agreements or unlawful act notices. Workers who bring a harassment claim and prove a s.40A breach get up to 25% uplift on compensation.
What workers can do
Complain internally first (using the employer's procedure). If unresolved, raise an ACAS Early Conciliation claim within 3 months less 1 day of the last act. File an ET1 if no settlement.
Important Warnings
The 25% uplift is on compensation for the harassment claim, not on a free-standing claim. Workers cannot claim under s.40A alone — they need an underlying harassment claim.
Small employers are not exempt — but what counts as 'reasonable steps' for a 5-person business differs from a 5,000-person business.
The duty applies prospectively from 26 October 2024. Historic failures cannot be used to ground a s.40A breach for acts before that date.
Useful Links
Frequently asked questions
- What are the most common mistakes to avoid?
- Watch out for: The 25% uplift is on compensation for the harassment claim, not on a free-standing claim. Workers cannot claim under s.40A alone — they need an underlying harassment claim.; Small employers are not exempt — but what counts as 'reasonable steps' for a 5-person business differs from a 5,000-person business.; The duty applies prospectively from 26 October 2024. Historic failures cannot be used to ground a s.40A breach for acts before that date.. If you're unsure on any of these, get advice from a regulated solicitor or a free service like Citizens Advice before acting.
- Where can I find the official forms and guidance?
- The official sources are: Equality Act 2010 s.40A; Worker Protection Act 2023; EHRC employer guidance. Always use the forms / guidance from the issuing authority's own site — third-party copies can be out of date.
- Can I do this myself without a solicitor?
- Yes — many people complete this kind of matter as a litigant in person. The site walks through each step in plain English. A solicitor is recommended if: large sums are at stake, the other side has legal representation, the matter involves criminal liability, children, immigration, or you're unsure on any procedural deadline. Free advice is available from Citizens Advice, Law Centres, and (for some matters) LawWorks pro bono clinics.
Part of our Employment Disputes hub
Pre-claim grievance through ACAS Early Conciliation, ET1, and Employment Tribunal hearing under the post-ERA 2025 regime.