Employment & Pensions Blog: Workplace Sexual Harassment - EHRC Launches Consultation on Updated Guidance

We previously reported on the Worker Protection (Amendment of Equality Act 2010) Act 2023 which is scheduled to come into force on 26 October 2024.  By way of reminder, it requires employers to take reasonable steps to prevent sexual harassment in the workplace and grants Employment Tribunals the power to uplift compensation for sexual harassment by up to 25% where an employer breaches this duty. 

As many will recall, the Equality and Human Rights Commission (EHRC) issued technical guidance on sexual harassment at work back in January 2020. This was to help employers understand their obligations under the Equality Act 2010 and the type of actions available to them to prevent workplace harassment. Earlier this month the EHRC updated this guidance to include more information on the new preventative duty. The EHRC has also launched a consultation seeking comments on the updates made with the aim of helping employers understand their duty. The consultation is only open until 6 August 2024.

Updated Guidance / Reasonable Steps 

The suggested amendments to the guidance have been presented as a new section, which in theory will be added to the existing guidance. The key takeaway points include: 

• Confirmation that the preventative duty only applies to cases of sexual harassment and will not extend to harassment related to a protected characteristic (i.e. sex, race, disability). 
• Requirement for employers to take “reasonable steps” to prevent sexual harassment by their staff and third parties. Currently, there is no direct legal protection for third party harassment in the legislation. 
• Clarification that what amounts to “reasonable steps” will vary from employer to employer and will largely be dependent on their size, the sector they operate in, the resources available to them, the risks in the workplace and the type of third parties that their workers will come into contact with. 
• Confirmation that the preventative duty is anticipatory and therefore employers should take proactive steps to undertake risk assessments to identify potential situations before those occur and take preventative measures to prevent those taking place.

Although the revised guidance is not conclusive on what steps employers should take, the guidance does indicate that to comply with this duty employers should: 

• Consider the risks of sexual harassment occurring in the course of employment; 
• Consider what steps it could take to reduce those risks and prevent sexual harassment of their workers; 
• Consider which of those steps would be reasonable for it to take as an organisation; and 
• Implement those reasonable steps before complaints of sexual harassment are made. 

The revised guidance also helpfully provides examples of what risk factors may pose an increased risk of sexual harassment occurring including, power imbalances, job insecurity, lone working, the presence of alcohol, customer-facing duties, lack of diversity in the workforce and workers being placed on secondment.

Third Parties 

The revised guidance has confirmed that this preventative duty requires employers to also take reasonable steps to prevent sexual harassment of workers by third parties (i.e. clients, customers) in the course of employment. Employers therefore need to give thought to whether their staff will come into contact with third parties and, if so, risk assess the possibility of sexual harassment occurring. If there is a risk, employers will need to take reasonable steps to prevent this. 

The revised guidance confirms that if an act of sexual harassment takes place outside of employment, the employer will not be directly liable. However, if a complaint is raised by an individual, employers must take reasonable steps to deal with this. 

Enforcement 

A breach of this duty cannot be brought as a standalone claim in the Employment Tribunal, but the Employment Tribunal can increase compensation by up to 25% in sexual harassment cases. However, the EHRC does have powers to take enforcement action against employers if they do not comply. This will include the ability to investigate the employer, issue an unlawful act notice, enter into a formal, legally binding agreement with an employer to prevent future unlawful acts and/or ask the court for an injunction to restrain an employer from committing an unlawful act.

Practical Steps for Employers

With October 2024 fast approaching, employers are advised to proactively prepare for the introduction of this new duty. Whilst this will vary from employer to employer, reasonable steps may include:  

• Assessing the risks relating to sexual harassment and creating or updating risk management framework to identify and monitor the risks; 
• Devising strategy documents which sets out the risk of sexual harassment occurring and the measures they will put in place to tackle this; 
• Ensuring they have effective policies and procedures in place to prevent sexual harassment; 
• Making sure they have separate policies for sexual harassment and harassment related to protected characteristics; 
• Making it clear in policies that staff will not be subjected to disciplinary action if a complaint of sexual harassment is not upheld, only if the allegation is found to have been made in bad faith. This will encourage staff to report inappropriate conduct; 
• Ensuring that these policies are easily accessible and all staff are aware of them; and
• Providing adequate and effective training to all staff on this and the channels available to them to report complaints.

Employers are reminded that failing to prepare for this new duty could lead to an increase in sexual harassment claims being upheld, and therefore increased compensation awards being made, but also cause reputational damage for employers. 

If you require further assistance or support, please contact a member of the Employment Team.