Causing harassment, alarm or distress because of a person's sex: what does the new criminal offence mean for employers?

We explain what this new section 4B of the Public Order Act 1986 offence involves and why it matters for employers. 

What is the new criminal offence?

There is already a criminal offence under section 4A of the Public Order Act 1986 when someone intentionally causes another person harassment, alarm or distress by:

• using threatening, abusive or insulting words or behaviour, or
• displaying threatening, abusive or insulting images or signs 

The Protection from Sex-Based Harassment in Public Act 2023 builds on this existing law. It does not replace it. Instead, it creates a new, additional offence by adding section 4B to the Public Order Act 1986. 

When does the new offence apply? 

A person commits the new offence under section 4B if both of the following apply: 

1. They commit the offence under section 4A. This means they intentionally cause harassment, alarm or distress by using threatening, abusive or insulting words or behaviour, or by displaying threatening, abusive or insulting images or signs; and
2. They do this because of the other person's sex or presumed sex.  

If both these elements are present, the behaviour may amount to the new criminal offence of sex-based harassment in public. 

The statutory guidance ‘Protection from Sex-based Harassment in Public Act 2023 statutory guidance for the police’ explains that this new offence applies only where the person intended to cause harassment, alarm or distress. However, intention alone is not enough. There must also be evidence that the victim actually suffered harassment, alarm or distress as a result of the behaviour.

The offence applies to behaviour in public places, including on the street, in open spaces and on public transport. It also covers public buildings that are open to the public, such as shops and cinemas. The offence can also apply to behaviour in a private place. However, no offence is committed if the perpetrator is inside a dwelling and the person affected is also inside the same dwelling, or a different dwelling. 

The offence is designed to deal with single incidents directed at someone in public. Where the behaviour occurs on two or more occasions against the same person, it may instead amount to harassment or stalking under the Protection from Harassment Act 1997. 

What is presumed sex?

The behaviour must be carried out because of the other person's sex, or what the perpetrator believes their sex to be. It does not matter if the perpetrator is mistaken about the person's sex, as long as they intentionally acted to cause harassment, alarm or distress because of what they believed that person's sex was.

What behaviour is likely to be caught by the new offence?

The statutory guidance ‘Protection from Sex-based Harassment in Public Act 2023 statutory guidance for the police’ gives the following examples of behaviour that could fall within the scope of the new offence: 

• Making repeated obscene, sexual or aggressive comments or gestures towards someone
• Blocking or restricting someone's movement, for example cornering them or stopping them from leaving
• Uninvited and deliberate contact, such as touching or kissing, or deliberately invading someone's personal space in a threatening way
• Threatening to commit a sexual offence
• Deliberately viewing or displaying obscene material in public, within someone's sight or hearing, with the intention of causing harassment, alarm or distress
• Deliberate and ongoing intimidation by a group, such as chanting at a person who is on their own. 

What is the penalty?

If someone is found guilty of the existing offence under section 4A of the Public Order Act 1986, they can face to up six months in prison. 

The new offence under section 4B of the Public Order Act 1986, which applies where the behaviour is motivated by a person's sex or presumed sex, carries a much higher maximum penalty. A person convicted of this offence can face up to two years' imprisonment. 

What does this mean for employers?

Only the person who carried out the behaviour can be held responsible for this offence. An employer cannot be held liable under section 4B of the Public Order Act 1986. This is different from harassment under the Equality Act 2010, where an employer can be held responsible for the actions of its employees if the behaviour happens in the course of their employment. 

Even so, this new offence is still relevant for employers to understand and be aware of. An offence could be committed in the workplace or when employees are attending events, such as conferences. 

It also comes at a time when the responsibilities on employers are increasing. From October 2026, the duty to take reasonable steps to prevent sexual harassment will be strengthened as you will be required to take all reasonable steps. From that date, you will also be liable where a third party harasses your employees. You can keep up to date with these changes and find out how you can prepare here.

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