Preventing sexual harassment at work: EHRC consults on new guidance

Blog

11.07.2024

On 26 October 2024, a new duty comes into force which requires employers to take reasonable steps to prevent sexual harassment of their workers in the workplace (the preventative duty), brought into effect by the Worker Protection (Amendment of Equality Act 2010) Act 2023. For further details about this duty, along with practical guidance for employers, see our blog A new law on preventing sexual harassment in the workplace.

To help employers understand their obligations under the preventative duty, the Equalities and Human Rights Commission (EHRC) has updated its technical guidance on sexual harassment and harassment at work. The updated draft (available here) includes a specific section on employer obligations under the new preventative duty and is open to consultation until 6 August 2024.

The updated guidance provides clarity on several important areas, in particular the concept of reasonableness, the enforcement role of the EHRC and third-party harassment. We outline these and other key aspects of the guidance below.

Reasonable steps

There is no detail in the legislation as to what will amount to a “reasonable step”. The guidance makes clear that whether or not an employer has taken reasonable steps to prevent sexual harassment is an objective test and will depend on the facts and circumstances of each situation.

The updated guidance advises employers to:

Consider the risks of sexual harassment occurring.
Consider what steps it could take to reduce those risks and prevent sexual harassment of workers.
Consider which steps it would be reasonable to take.
Implement those reasonable steps.

In deciding whether a step is reasonable, relevant factors for employers to consider include the size of the employer, the nature of the workforce, the risks present, as well as the types of third parties and the likelihood of workers coming into contact with them.

Practical steps highlighted in the guidance as being potentially reasonable include:

Updating policies and procedures to clarity the law, expected behaviour and complaints mechanisms.
Training to raise awareness of rights related to sexual harassment.
Specific training for managers to support them in dealing with complaints.
A process for reviewing the effectiveness of updated policies and training.
A timetable for refresher training.
Adopting a zero-tolerance approach to third-party sexual harassment (see below for more information on third-party harassment) and encouraging staff to report any instances that occur.
Informing third parties of the zero-tolerance policy.

Consequences for breach

There are two potential consequences if an employer does not comply with the preventative duty:

EHRC enforcement action

The EHRC has the power to take enforcement action against an employer who breaches the preventative duty or in the event the EHRC suspects the duty has not been complied with (it isn’t dependent on an incident of sexual harassment actually taking place).

EHRC enforcement powers include: investigating an employer, issuing an employer with an unlawful act notice requiring then to prepare an action plan for how they will remedy the breach, entering into a binding agreement with an employer to prevent future unlawful acts, or asking the court for an injunction to restrain an employer from committing an unlawful act.

Uplift in compensation

If an employee succeeds in a claim for sexual harassment and is awarded compensation, an Employment Tribunal must consider whether the employer has complied with the preventative duty. If it is satisfied that the preventative duty has been breached, it may apply an uplift to any compensation award of up to 25 per cent.

Third-party harassment

The original version of the Worker Protection Act would have introduced employer liability for third-party harassment of employees in the course of employment. This proposal was dropped before the legislation was passed, meaning the law in this area remains changed: employers are not liable for third-party harassment.

Notwithstanding this, the EHRC guidance takes the firm view that the preventative duty “requires employers to take reasonable steps to prevent sexual harassment of workers by third parties”. Accordingly, a failure to prevent sexual harassment by third parties will be in breach of the preventive duty. Third parties might include customers, clients, service users, delegates at events and members of the public. The EHRC’s emphasis on third-party harassment is highlighted by the fact that two out of the three examples included in the updated guidance concern third-party harassment.

The guidance gives the following suggested steps that employers can take to prevent sexual harassment by third parties:

Adopt a zero-tolerance policy to third-party sexual harassment and communicate that to staff.
Encourage staff to report instances of third-party harassment.
Develop a protocol for how any reports of third-party harassment will be dealt with.

Significantly, in the absence of a statutory liability on employers for third-party harassment, individuals do not have an ability to bring a claim directly against their employer for harassment by a third party, nor does it appear that an uplift in compensation would apply in these circumstances. However, the EHRC could take enforcement action against employers if the preventative duty is breached in this area.

Anticipatory duty

The guidance emphasises the anticipatory nature of the preventative duty. Employers must anticipate scenarios where sexual harassment may arise and take proactive action to prevent it taking place. Employers shouldn’t wait until an incident of sexual harassment occurs before taking action.

Sexual harassment only

The preventative duty only applies to sexual harassment. It does not cover other types of harassment relating to a protected characteristic, nor does it apply to less favourable treatment for rejecting or submitting to unwanted conduct.

It is worth noting that an individual cannot bring a claim for breach of the preventative duty alone. It is for the Tribunal to consider the duty when determining compensation in the context of a successful sexual harassment claim.

Practical steps for employers

The updated guidance is still subject to consultation (until 6 August) and so the final version may yet differ from the current draft. Radical differences seem unlikely however, not least given Labour’s New Deal commitments to “create and maintain workplaces … free from harassment, including by third parties” and to strengthen the preventative duty to require employers to take all reasonable steps to stop sexual harassment. Given this, with just over three months until the preventative duty comes into effect, employers are advised to take the current draft guidance as best practice (including in respect of third-party harassment) and to start preparing for that, if they haven’t already done so.

For more information on practical steps employers can take to prepare for the preventative duty see our blogs:

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.