The Care Sector Bi-Annual Update – Harassment in the Care Sector: Prevention in Practice
18th March, 2025
Preventing harassment in the workplace has become a hot topic. New legislation marks a shift in culture and employer expectations.
Employers are now required to be proactive in preventing harassment in the workplace, rather than simply reacting appropriately to acts of harassment. Carrying out risk assessments is routine in the care sector, but on this occasion, will require the focus to move from the service users to the employees.
There has been significant legislative updates in relation to the law around harassment in recent months and more changes are still to come. For providers, it is vital that action be taken at an early stage to ensure legal compliance.
A new duty on employers to prevent sexual harassment in the workplace came into force on 26 October 2024 and is outlined in the Worker Protection (Amendment of Equality Act 2010) Act 2024 (WPA 2024).
The Employment Rights Bill (the Bill), introduced to Parliament on 10 October 2024 and due to come into effect in 2026, is set to expand on the duties set out in WPA 2024, introducing more onerous requirements on employers to prevent sexual harassment in the workplace and to safeguard employees from third party harassment.
Duty to prevent sexual harassment: the current position
The Equality Act 2010 (the EqA) prohibits sexual harassment and any less favourable treatment because an employee has rejected, or submitted to, conduct of a sexual nature. This can be a concern for employers, who can be held vicariously liable for sexual harassment carried out by an employee in the course of their employment. In the event that an employee brings a claim of sexual harassment against their employer, the employer may be able to defend the claim if they are able to evidence that they took all reasonable steps to prevent an employee from acting unlawfully.
WPA 2024 sits alongside the existing employee protections in the EqA and requires employers to take reasonable steps to prevent the sexual harassment of employees during the course of their employment. This duty does not create a stand-alone claim for employers to bring in the Employment Tribunal; claims for breach of the duty can only be considered by a Tribunal if an employee has successfully brought a sexual harassment claim.
If an employee makes a successful claim for sexual harassment and the employer is found to have breached the duty contained in WPA 2024, Employment Tribunals have the power to increase compensation by up to 25%.
The Equality and Human Rights Commission has power to enforce the duty in WPA 2024, by:
- Conducting investigations when it suspects that a person has committed an unlawful act.
- Entering into binding agreements with persons or organisations in order to address ongoing issues of discrimination or harassment.
- Assisting with or intervene in certain disputes.
Duty to prevent sexual harassment: on the horizon
The Bill sets to bring about further change to how employers must protect employees from harassment, by expanding on the duty set out in WPA 2024. The Bill introduces the new legal expectations on employers, by:
- Requiring employers to take all reasonable steps to prevent sexual harassment, rather than just reasonable steps.
- Creating a new obligation for employers to prevent harassment of their employees by third parties.
- Classifying sexual harassment-related disclosures as protected disclosures, meaning that:
- they cannot be covered by a non-disclosure agreement; and
- dismissals for making a protected disclosure regarding sexual harassment will be treated as automatically unfair.
It is crucial to note that consultations are ongoing to iron out the provisions included in the Bill and that amendments may still be made before the Bill comes into force.
Third Party Harassment
The Bill will amend the EqA so that, as well as prohibiting employers from harassing their employees of job applicants, they must also not permit third party harassment of their employees. This would include harassment from contractors attending a care home, family members visiting and the service users themselves.
Where an employee has been subjected to harassment by a third party during the course of their employment, and the employer is deemed to have failed to take all reasonable steps to prevent this, in the eyes of the law, the employer is take to have permitted this harassment.
“All reasonable steps”
The requirement for employers to take “all reasonable steps” sets a higher threshold for employers, as it will no longer be enough to demonstrate that they imposed some policies and procedure or training to prevent harassment of their employees by third parties; employers will likely have to show that they exhausted all options when seeking to prevent sexual harassment and third party harassment in their workplace.
Forthcoming regulations will specify what steps are to be deemed reasonable, but these will include (but will not be limited to):
- Carrying out assessments of a specified description (likely to cover risk assessments);
- Publishing plans or policies of a specified description (likely to cover action plans and sexual harassment policies);
- Steps relating to the reporting of sexual harassment;
- Steps relating to the handling of complaints.
What preparatory steps should providers be taking?
The obligations imposed on employers by the WPA 2024 and the Bill are reflective of a cultural and societal shift. In the wake of the #MeToo movement, legislation seeks to create a proactive workplace culture, where harassment is prevented, rather than simply reacted to or redressed. Employers that attempt to resist this change risk not only being left behind as society progresses; they also face the risk of acting unlawfully.
The Bill is coming into effect next year, and there is no way around compliance. We recommend that employers seek to take proactive measures to prevent sexual harassment by employees and harassment of employees by third parties now, to avoid allegations of non-compliance at a later date.
Practical steps providers can take to comply with the new legislation include:
- Ensuring that they have effectively implemented anti-harassment policies and reporting procedures and that these are are clearly communicated to workers, monitored and reviewed regularly;
- Arranging relevant and periodic training, including refresher training sessions, for employees, so that they understand their employer’s policies and the law relating to sexual harassment;
- Promptly investigating harassment-related complaints raised by workers properly and taking appropriate action where wrongdoing is identified;
- Ensuring that risk assessments in respect of service users are up to date;
- Alerting families, contractors and visitors to the business’ rules and requirements around preventing harassment.
How can Ward Hadaway help your organisation?
We are on hand to assist organisations in complying with the new obligations. We offer a Worker Protection Compliance Toolkit, which provides organisation with relevant resources to ensure appropriate reasonable steps are being taken, with the aim of minimising the risk of exposure to harassment-related claims.
If you want to learn more about the Compliance Toolkit and register your interest in receiving it, you can click the link here.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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