EHRC consults on new duty to prevent sexual harassment

The Equality and Human Rights Commission has launched a consultation on proposed changes to its technical guidance on sexual harassment and harassment at work. The changes take into account the new duty on employers to take reasonable steps to prevent sexual harassment of their workers set out in the Worker Protection (Amendment of Equality Act 2010) Act 2023. The new duty will be coming into force on 26 October. The consultation is a short one, just four weeks, running until 6 August. 

A reminder. Under current law employers are liable for harassment committed by their workers in the course of employment, but they will have a defence if the employer can show that they took ‘all reasonable steps’ prevent it. The new law goes further, creating a new positive legal obligation for employers to take reasonable steps to stop sexual harassment from happening. The aim is to shift employers’ focus towards taking proactive measures to identify risks and prevent sexual harassment from happening in the first place. If an employer breaches the new duty, the Commission will have the power to take enforcement action against the employer and employment tribunals will have the power to increase compensation for sexual harassment by up to 25%. Potentially more serious, however, in our view, is the risk of internal and external reputational damage as a result of being shown to have a culture where harassment exists, and/or is not addressed.

As for the scope of the new duty, you may recall the original proposal - to take 'all reasonable steps’ -was watered down by the House of Lords in the last parliament with the word ‘all’ being dropped. The Commission’s guidance reflects that position. The rationale for that amendment was concern that inclusion of the word ‘all’ meant employers would have to take an ‘almost infinite’ number of steps to comply and that would be too onerous for businesses. Labour had indicated they planned to return to the original working if they came to power but, notably, there was no mention of that in the King’s Speech yesterday. 

Liability for third party harassment is expressly referred to in the guidance which is interesting as it shows the Commission plans to use its enforcement powers in this area. The extension of liability for harassment to acts of third parties was originally in the Act but, again, the Lords removed it over concerns it was too onerous for businesses and fears it curtailed free speech. There was no mention of a change to that position in the King’s Speech yesterday. As for the guidance, it appears to encompass both the Commission’s enforcement powers and the potential uplift to tribunal awards where the failure to prevent relates to third party harassment. Exactly how that will work in practice is not entirely clear at this stage but, hopefully, the consultation will shed light on that issue. Our initial view is that whilst the Commission’s enforcement powers could be invoked, an employer’s failure in this regard would be unlikely to result in an uplift to any compensation awarded. 

A key requirement under the new duty will undoubtedly be for employers to provide training on the new duty. So, there will be a need for regular training sessions for all staff so that they understand what sexual harassment is and their role in preventing and/or addressing it. We’ve known for a long time that this new duty was on its way so we have already been running courses for our clients to help them get ready for the new duty when it comes into force on 26 October. Trish Embley is Head of Client Training and earlier she joined me by video-link from Birmingham to discuss that training: 

Trish Embley: “It’s one of our most popular workshops at the moment because, as everybody knows, we've got this new law coming in October, this new duty to prevent sexual harassment, but really where advice and guidance is needed is what does that mean in practical terms? What should people actually be doing? So, of course, the Equality and Human Rights Commission will be updating their guidance but already they've got a very useful guide, very user friendly, very easy to read, their seven-step guide to preventing sexual harassment in the workplace. So, really, we're looking at that and operating workshops, working with HR teams, EDI teams, and trying to develop their own strategy based on that.”

Joe Glavina: “The new duty is to take ‘reasonable steps’ to prevent harassment but what does that mean in practice? How are we helping clients to understand it?”

Trish Embley: “Yes, well, the starting point really is gathering data, seeing where different parts of your organisation are at the moment. So, the Equality Human Rights Commission’s seven step guide says, first of all, engage your employees - anonymous surveys, exit interviews, one to ones, focus groups, what are their experiences to date of sexual harassment in the workplace? Gather that data and then look at it in a sort of risk assessment way. Where are you hotspots in the organisation? Are certain names coming up? Are certain departments, certain roles, being highlighted where the risk is higher? Then decide what your preventative measures are. So it's not going to be a one size fits all, it's going to be tailored to the different risks within the different bits of the business. With any of these things, I think it's really important that we get that sort of C-suite engagement. So, in an ideal world, you'd have focus groups being chaired by, ideally, the CEO, board directors, and they are getting this information directly from employees and deciding what can be done. Obviously, policy is important. The guide suggests that you have a separate sexual harassment policy. Now, it is only guidance, it’s not law, or you sort of carve it out of your existing Dignity at Work policy and specifically home in on sexual harassment. But obviously, to change things, training is really, really important. So thinking about how you're going to educate within the organisation.”

Joe Glavina: “Can I just ask you specifically about investigations, Trish. Sarah Munro talked to me recently about the trend towards clients using external lawyers to conduct their investigations for them. What are your thoughts on that?” 

Trish Embley: “I think that's a good idea because, unlike other investigations, sexual harassment investigations can be really complex. I mean, obviously, if you're getting lawyers to do it, and you're the client, you've got that issue about legal privilege but even when we're training on sexual harassment there are these nuances like, for example, what to do about one word against the other, or he said she said. So, I think lawyers have that insight to be able to say, right, you know, what I know here is that I may have to look broader at the scope of the evidence, like corroborative evidence. These are quite technical points and in most organisations I deal with there are line managers, or supervisors, doing investigations but with these sorts of nuances and complexities involved with harassment, and the definition of harassment, I think it is useful to have that outside expertise.”

Joe Glavina: “It’s pretty clear from the nature of the new duty that any training provided will need to be effective if it’s going to count as one of the reasonable steps. So, it needs to be tailored to the business, I imagine. Is that right?” 

Trish Embley: “It is, it is, and that is because with most large organisations the risks will be different. So, I think the days of rolling out something that everybody does, and that box is ticked, has gone. We perhaps are doing work with those organisations who want to make sure that they've got things in place by October. So for example, one of the other seven steps that the Equality and Human Rights Commission recommends is around thinking about how people report. Do you have things like an anonymous helpline? A lot of these organisations I'm speaking to in training when I ask that question they say, well, no, we don't. So, again, they are quite wisely wanting to get ahead of the duty coming in October so by the time it does come in, they've set up these reporting hotlines, they're gathering their data, because, of course, as I referred earlier, it's a risk assessment approach. If you've got this risk assessment that you're constantly updating, it's a live document, you're constantly looking at your data, even when there are cases you're looking at what measures can be taken and what lessons have been learned as you would, say, with an accident. If the Equality and Human Rights Commission come knocking on the door, because remember, it's going to be the Equality and Human Rights Commission who will be the enforcer of this new duty and we've seen headlines with big brand name employers having investigations into the way they've responded to sexual harassment. If you’ve got this risk assessment document in place, that will be great evidence to show either in a tribunal, or to the Equality Human Rights Commission, you are taking this seriously and you are taking reasonable steps.”

Joe Glavina: “You mention the ‘risk assessment’ approach. HR professionals listening to this may think that sounds rather like health and safety which, of course, their H&S colleagues would know all about. So, are you saying HR should liaise with them?” 

Trish Embley: “I think it's a good idea to sort of liaise with health and safety because they will have the structures and the mechanisms in place as regards accidents. So it's almost like you could look at their templates for that and how they approach it, and that framework, and I think that's where health and safety colleagues can be of great assistance. I know within our own organisation Zoe Betts helps with that. This is a wellbeing issue after all, this is a hazard to a business. Again, our employment law colleagues in Australia, they've had a similar law in place since, I think, the end of 2023 and I know this sort of health and safety type risk assessment is something that they have been advocating and using in Australia so, again, we can draw on their experience as well.”

The Commission’s consultation opened on 9 July and will run until Tuesday 6 August so you still have time if you would like to respond. The consultation paper includes a link which allows you to submit your views to the Commission online. We’ve included a link to that in the transcript of this programme for you.  

LINKS
- Link to EHRC guidance: