Sexual harassment in the workplace: EHRC launches consultation on updated guidance

On 26 October 2024, a new duty is being introduced for employers to “take reasonable steps” to prevent sexual harassment of their employees.

The Equality and Human Rights Commission (ECHR) has now launched a consultation seeking comments on updates to its existing technical guidance which aims to help employers understand their obligations.

Significantly, the updates to the guidance make multiple references to harassment by third parties. Whilst here is no direct legal protection for employees against harassment by third parties, as this was dropped from the final legislation, the guidance indicates that the new duty will require employers to take reasonable steps to prevent sexual harassment by both their own workers and third parties. 

What is the new duty?

The guidance also indicates that the EHRC will use its enforcement powers if it finds that an employer is failing to protect its employees from sexual harassment by third parties.On 26 October 2024, a new mandatory duty requiring employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment (called the ‘Preventative Duty’ in the guidance) will come into force, creating a new risk area for employers. 

Breach of the duty may result in an increase of up to 25% to the compensation awarded for sexual harassment by Employment Tribunals.  

Employees won’t be able to bring a claim for breach of the duty as it won’t be a standalone claim – but where their claim for sexual harassment succeeds, the Employment Tribunal will then consider applying an uplift to any overall compensation awarded if it also considers there has been a breach of the new duty. 

There is also the possibility of enforcement action by the EHRC. If an employer does not comply with the Preventative Duty, the EHRC has the power to:

• investigate an employer 
• issue an unlawful act notice if the employer is or has been the subject of an investigation, confirming that the EHRC has found an employer has breached the Equality Act 2010 and requiring the employer to prepare an action plan setting out how it will remedy any continuing breach of the law and prevent future breaches 
• enter into a formal, legally binding agreement with an employer to prevent future unlawful acts 
• ask the court for an injunction to restrain an employer from committing an unlawful act.

The EHRC can also use their enforcement powers to take action if they suspect the Preventative Duty has not been complied with. Enforcement action can be taken even if there has not been an incident of sexual harassment taking place.

What is this consultation about?

The EHRC issued technical guidance on sexual harassment and harassment at work in 2020 which aimed to help employers understand their obligations. That guidance is to be updated for the new Preventative Duty to help employers understand what is expected of them. This consultation is about the changes the EHRC proposes to make to its guidance.  

The consultation is only open for four weeks – until 6 August 2024.

What does the updated guidance say?

The amendments to the existing guidance take the form of a new section which will be added to the existing guidance. Currently, it is unclear how references in the new section correspond to paragraph numbers in the existing guidance. Hopefully this will be clarified shortly.

Key points to take away from the proposed updates to the guidance include that it:

• Confirms that the Preventative Duty only applies to sexual harassment (i.e. unwanted conduct of a sexual nature) and not harassment related to a protected characteristic e.g. sex or race
• Emphasizes that the Preventative Duty is an anticipatory duty. Employers should not wait until an incident of sexual harassment occurs before taking action. Instead, they should undertake risk assessments to identify situations in which their workers may be subject to sexual harassment and take action to prevent such harassment taking place
• Requires employers to take reasonable steps to prevent sexual harassment by their own workers and by third parties such as clients and customers, service users, patients, friends and family of colleagues, delegates at a conference and members of the public. As things stand, there is no direct legal protection for employees against harassment by third parties as this was dropped from the final legislation
• Says that what amounts to reasonable steps will vary for different employers and different facts and circumstances. It will depend on factors such as the employer’s size, resources, the sector it operates in, the nature and risks in the workplace, the types of third parties that workers may have contact with and the likelihood of workers coming into contact with those third parties
• Contains some helpful examples of what is expected.

Practical take aways for employers

The new legislation shifts the focus from redress to prevention, adding to the onus on employers to take proactive steps. Taking proactive steps to prevent incidents of harassment and bullying arising will also help employers build a more inclusive workplace culture. 

Failure to prepare for this new duty risks an increase in discrimination claims, which could lead to substantial compensation payouts and damaging publicity. 

This is particularly so in the wake of the #MeToo movement and increased government focus on Non-Disclosure Agreements (NDAs) which have led to heightened expectations of respectful workplace culture and a growing awareness among employees about discrimination rights. 

Interestingly, it does not appear that the new guidance will add much more to the practical steps already set out in the existing technical guidance. However, with the stakes now that much higher, employers will need to pay closer attention to what is set out in the guidance in order to comply with this duty. Whilst what amounts to reasonable steps will vary from employer to employer, examples of steps that could be taken include:

• Having appropriate policies which clearly differentiate sexual harassment from other types of harassment, and which are followed diligently when complaints are made
• Ensuring that all workers know about the policies and understand them, to include requiring workers to attend regular, tailored and practical training to help ensure all workers are clear on expected behaviours - training which is ‘stale’ or just a tick-box exercise is unlikely to be treated as a reasonable step to prevent harassment
• Conducting risk assessments and taking sensible steps to minimise and manage any identified risks including in relation to third party harassment risk
• Having in place clear channels for reporting complaints
• Ensuring that there are systems in place to regularly record, analyse, review and monitor sexual harassment risks and to respond to instances of sexual harassment with steps to ensure it is not repeated.

For larger employers, those in male dominated sectors or where employees regularly interact with third parties, there will be an expectation of greater steps being taken to prevent sexual harassment beyond this base expectation.

It will also be important for employers to factor in any additional requirements from the updated EHRC Statutory Code of Practice and the final version of the Technical Guidance (which is expected to be published before the new duty comes into force on 26 October 2024).

One point to note, is that the updated guidance has been published following the Labour Party’s victory in the general election. It does not take account of the Labour party's manifesto pledge to strengthen the legal duty for employers to take all reasonable steps to stop sexual harassment before it starts. It remains to be seen if Labour will take the view that the scope of this new duty and the approach set out in the ECHR guidance does not go far enough.  

Get in touch for advice

As the new duty approaches, your preparations should not be limited to simply repeating previous staff training; the new duty to be proactive goes further than this and requires step change.

Organisations should now undertake a comprehensive review of their current policies, training, and workplace culture. You will need new training materials suited for staff at all levels, and to implement various practical measures which will help you adopt a proactive stance against harassment, bullying and other negative workplace behaviours.

We can provide bespoke advice tailored to your organisation’s needs. Our approach is not just about meeting the new requirements; it’s about fostering a zero-tolerance environment that drives positive change. Our goal is to help you create effective resolution pathways, pinpoint risk areas, and ultimately cultivate a superior workplace culture.

Click here for more information on how we can help. 

For further details about this new duty, see our update.