EHRC proposes changes to guidance on preventing workplace sexual harassment

The proposed changes have been set out in a consultation by the EHRC, in light of the new duties to be imposed on British employers to prevent workplace sexual harassment. The new rules have been introduced by the Worker Protection (Amendment of Equality Act 2010) Act 2023, which comes into force on 26 October 2024.

The changes in equality law places a new positive legal obligation on employers to take reasonable steps to protect their workers from sexual harassment. Through the current consultation, the EHRC is looking to update its guidance by adding a new section on the new preventative duty as well as some minor changes to the existing guidance.

Employment law expert Helen Corden of Pinsent Masons said that the key focus, as expected, is on prevention as the preventative duty is an anticipatory one.

“Anticipating scenarios [in the newly added section] means taking a risk assessment approach,” Corden said. “The draft contains examples of this, and of potential preventative steps arising from the risk assessment. These will be business and potentially area specific. A large employer may have to take a different approach for customer-facing areas of its business for example.”

According to the draft guidance, what is reasonable will vary from employer to employer and will depend on factors such as the employer’s size, the sector it operates in, the working environment and its resources. There are no particular criteria or minimum standards an employer must meet. Different employers may prevent sexual harassment in different ways, but no employer is exempt from the sexual harassment preventative duty.

The consequences for employers that breach the preventative duty are also made clear in the draft.

“The EHRC will have the power to take enforcement action if it suspects the preventative duty has not been complied with, and action can be taken even before any incident arises,” said Francis Keepfer of Pinsent Masons.

Another new consequence is the potential to uplift compensation. An employment tribunal will be given the power to apply an uplift of up to 25% on tribunal awards where the duty to prevent sexual harassment is not been complied with.

Keepfer also reminded employers of other enforcement powers of the EHRC, including its ability to enforce a legally binding agreement with an employer to prevent future unlawful acts and ask the court for an injunction to restrain an employer from committing an unlawful act. 

“The guidance doesn’t deal with perhaps the main consequence, which is internal and external reputational damage of being shown to have a culture where harassment exists or is not addressed,” said Keepfer.

Another important update proposed by the EHRC is to expressly refer to third party harassment in its guidance. The draft sets out clearly that sexual harassment of a worker can be committed by a third party and that the preventative duty is to include prevention of sexual harassment by third parties.

However, there are still questions relating to uplift of awards and enforcement powers over harassment committed by a third party.

Keepfer said: “Third party harassment is expressly referred to and the guidance seems to seek to encompass both the EHRC’s enforcement powers and the potential uplift to tribunal awards where the failure to prevent relates to third party harassment. Our initial view is that whilst the EHRC’s enforcement powers could be invoked where there is a failure to adhere to a statutory duty, which the duty to prevent sexual harassment by third parties will be, as the law currently stands it is difficult to see how any claim in relation to failure to prevent third party harassment could attract any uplift to a tribunal award.  Clarification may be provided on the scope and intention around this following consultation.”

The final form of the guidance and the new duty may still be subject to change with the newly elected Labour government, according to Corden.

“The Labour party did previously indicate that they would expand the duty to taking all reasonable steps, rather than just reasonable steps. The King’s Speech next week may provide more detail on this,” she said.

The EHRC’s consultation closes on 6 August 2024.