Sexual harassment in construction: How to protect your business and meet your legal duties

The construction industry has long prioritised physical safety — with hard hats, high-vis and risk assessments woven into daily operations. But when it comes to workplace culture, sexual harassment remains an often-overlooked risk — despite growing legal, reputational and commercial consequences.

Since 26 October 2024, employers have been subject to a new statutory duty under the Worker Protection (Amendment of Equality Act 2010) Act 2023 to take reasonable steps to prevent sexual harassment at work.

This builds on the existing Equality Act 2010, which already made employers liable for harassment by employees unless they could show they had taken all reasonable steps to prevent it. The key shift is that employers must now take proactive, preventative action, and the Equality and Human Rights Commission (EHRC) has the power to investigate and enforce compliance, even where no employee has made a formal complaint.

This change is particularly significant for the construction sector, where informal site cultures, close-knit teams, and longstanding norms can make inappropriate behaviour harder to identify, report, or challenge. With the mix of direct employees, subcontractors, agency workers, and apprentices on site, combined with isolation and limited oversight in smaller teams, construction sites can become environments where inappropriate behaviour is either tolerated or goes unreported.

What is sexual harassment?

Under the Equality Act 2010, sexual harassment is unwanted conduct of a sexual nature that has the purpose or effect of either

1. Violating someone’s dignity; or
2. Creating an environment that is intimidating, hostile, degrading, humiliating or offensive.

Importantly, sexual harassment does not need to be physical, nor does the person responsible need to intend harm. If the behaviour creates an environment that is intimidating, hostile, or offensive — and it was reasonable for the individual to feel that way — it can still constitute sexual harassment, regardless of intent.

Examples of behaviour that could constitute sexual harassment include:

• Unwanted physical contact – including grabbing, pinching, groping, brushing against someone, or physical “horseplay” with a sexual element
• Sexual jokes, comments or “banter” – including remarks about someone’s body, clothing, sex life or sexuality, whether spoken or shared digitally
• Unwelcome sexual advances – such as repeated flirting, suggestive comments, or asking for dates after being turned down
• Sharing or displaying offensive material – including pornographic images, videos, memes, posters or screen savers, whether on phones, messaging apps or around the site
• Inappropriate gestures or visual behaviour – such as leering, winking, or making suggestive hand signs
• Invading personal space or using physical presence in a way that feels intimidating or suggestive — such as standing too close or blocking someone’s path
• Sexual content or innuendo shared via digital platforms – including unwanted texts, emails or direct messages.

Even if someone laughs along or doesn’t complain immediately, that doesn’t make the behaviour acceptable. Harassment can take place over time or in a single incident, and it can be committed by anyone on site — not just direct employees.

What does ‘reasonable steps’ actually mean?

There’s no one-size-fits-all answer — what’s considered reasonable depends on your size, resources, working environment and the risks specific to your site. The EHRC also advises weighing the likely impact, cost and effectiveness of any action, along with any previous concerns raised.

To help guide employers, the EHRC has published a detailed eight-step framework. While not legally binding or exhaustive, following these steps is likely to support a strong defence and demonstrate that proactive, reasonable measures have been taken. Here’s how they may apply in the construction context:

1. A clear and visible policy

Rather than relying on generic wording in a staff handbook, it’s advisable to have a standalone policy that clearly sets out what sexual harassment is, how to report it, and who it applies to — including subcontractors and agency staff. Reinforcing the policy during site inductions, onboarding and through visible signage can also help raise awareness.

2. Regular engagement with workers

Carrying out regular one-to-ones, toolbox talks or anonymous surveys may help surface concerns early and demonstrate that workers are being given a safe opportunity to raise issues. Ensuring that feedback is acted upon also helps to build trust.

3. Risk assessments reflecting site reality

It’s sensible to assess how specific features of a site or working pattern — such as isolated areas or unsupervised shifts — might increase risk. Where risks are identified, measures such as adjusting supervision or rotating placements could reduce exposure.

4. Clear and accessible reporting routes

Employers may want to consider providing varied and well-signposted ways to report concerns — such as anonymous tools, third-party hotlines or named points of contact. This is particularly important on larger or multi-contractor sites where workers may feel less able to speak up.

5. Practical, site-focused training

A single e-learning module is unlikely to be sufficient on its own. Brief, practical sessions — such as toolbox talks using real-life scenarios — are often more effective. Supervisors and site managers should ideally be equipped to recognise sexual harassment and respond promptly and appropriately.

6. Taking complaints seriously

It’s important to have a clear process in place to investigate complaints sensitively and fairly. This could include support for the individual affected, appropriate action where misconduct is found, and clear record-keeping to help monitor patterns.

7. Managing third-party risks

Where workers interact with clients, suppliers or other visitors, steps should be taken to minimise the risk of third-party harassment. This might include setting expectations in contracts, investigating complaints, and being prepared to escalate — including removing individuals from site or re-evaluating supplier relationships if necessary.

8. Monitor and review

Tracking training attendance, reviewing incident logs (formal or informal), and updating policies where needed is advisable. If harassment continues despite existing steps, this may indicate that further or alternative action is required.

The risk of inaction

Sexual harassment claims before the Employment Tribunal are uncapped and will typically include an award for injury to feelings. If an employer is found to have failed to take reasonable steps to prevent sexual harassment, the Tribunal may increase the compensation by up to 25%.

With the EHRC now empowered to investigate and enforce compliance with the new duty to take all reasonable steps, even in the absence of a formal complaint, failure to act could lead to significant legal and reputational consequences.

In addition to tribunal risks, inaction presents real business risks. Harassment can harm workplace morale, increase staff turnover, and undermine team cohesion, all of which negatively impact productivity and overall business performance.

Conclusion: What should you do now?

As the construction industry faces increasing scrutiny on workplace culture, it’s crucial to act proactively to prevent sexual harassment. To help mitigate risks of non-compliance and protect your business, here are some key actions you should consider:

1. Review and update your anti-harassment policies, ensuring they are tailored to the specific realities of your sites
2. Deliver regular, site-based training to all workers, reinforcing expectations around behaviour and ensuring supervisors are equipped to respond effectively to sexual harassment
3. Review contracts with subcontractors and agency workers to ensure they align with your harassment policies and establish clear expectations of behaviour
4. Establish accessible and trusted reporting routes that encourage workers to raise concerns confidently, knowing they will be taken seriously
5. Maintain clear records of all actions taken. If you ever need to defend your actions in a legal context, proper documentation is essential to prove you’ve taken “all reasonable steps.”

It’s important to note that the Employment Rights Bill will soon strengthen the legal requirements, shifting from taking “reasonable steps” to taking “all reasonable steps” to prevent sexual harassment. As these duties increase, timely compliance is critical to mitigate legal risks.

Additionally, attracting and retaining women in the construction workforce is more than just a diversity goal — it can help alleviate industry labour shortages. Women make up around 42% of the overall labour market, yet they represent only 13-15% of the construction workforce, with just 1-2% in skilled trades. Ensuring a safe, respectful environment is crucial to recruiting and retaining women. According to the Randstad Gender Equality in the Workplace Report, 89% of women in construction have experienced perceived gender discrimination, and 41% report that the fear of sexual harassment has impacted their careers.

By prioritising a harassment-free workplace and taking proactive steps, you not only meet your legal obligations but also create a safer, more inclusive environment that benefits your business in the long run.

If you are an employer in the construction industry and need assistance in drafting comprehensive policies or guidance on how to effectively comply with the duty to prevent sexual harassment, including the creation or review of a checklist and action plan, please contact the employment team at Thomson Snell & Passmore.