Sexual harassment: key points from the Equality and Human Rights Commission (EHRC) draft updated technical guidance

A new proactive duty on employers to prevent sexual harassment will be in force from 26 October 2024. In preparation, the Equality and Human Rights Commission (EHRC) has updated its technical guidance and put it out, in draft form, for consultation. Here, we look at what the new preventative duty is and what the draft technical guidance says.

Background

The new Worker Protection (Amendment of Equality Act 2010) Act 2023 made it onto our statute books in 2023 and has a commencement date of 26 October 2024. It will introduce a new preventative duty on employers to prevent sexual harassment in the workplace. In preparation for this, the EHRC has released its updated technical guidance in draft form as part of a consultation. We expect the finalised version of the technical guidance to be released in September 2024.

What is sexual harassment?

Sexual harassment is when a person is subjected to unwanted conduct of a sexual nature which has the purpose or effect of either violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.

If they are treated less favourably because they submitted to, or rejected that unwanted conduct, that is also sexual harassment.

What obligations do employers currently have?

A claim for sexual harassment can be brought by workers against their employer because employers are vicariously liable for the actions of their workers when acts of harassment are carried out “in the course of employment”, regardless of whether the employer knows about or approves of those acts.

A claim may also be brought against the individual perpetrator. This is because individuals are also personally liable for their own acts of harassment where the employer is liable because they were committed “in the course of employment”.

An employer will usually try to defend such a claim by arguing that it has taken “all reasonable steps” to prevent the harassment from taking place.

Scope of duty

The preventative duty only applies to sexual harassment of workers in the course of their employment. It includes prevention of sexual harassment by third parties like self-employed contractors, members of the public, customers and clients. Therefore, if an employer does not take reasonable steps to prevent sexual harassment of its workers by third parties, the preventative duty will be breached.

What is “reasonable”?

The draft guidance explains that what is reasonable will vary from employer to employer and it will depend on factors including:

• employer’s size
• sector it operates in
• working environment
• resources
• risks present in that workplace
• types of third parties workers may have contact with
• likelihood of workers coming into contact with such third parties.

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 draft guidance explains that an employer 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 its workers
• consider which of those steps it would be reasonable for it to take
• implement those reasonable steps

Examples of steps an employer could take include:

• Policy: it should set out what sexual harassment is, that disciplinary action may be taken against perpetrators and detail how a worker can raise concerns. Remind staff of the policy regularly and before work/social events. Regularly review the effectiveness of the policy
• Training: train all staff on sexual harassment and what is considered to be unacceptable behaviour in the workplace, and how to keep themselves safe. Managers should also receive specific training on what to do if a complaint of sexual harassment is made. Ensure training is regularly reviewed and updated. Carry out refresher training periodically
• Assess the risk: employers should consider the risks of sexual harassment in their organisation. Who do staff come into contact with during their working day, and for what purpose? What risks do those interactions create? Include third parties in this consideration, ie people you do not employ but that your staff come into contact with including self-employed contractors, clients, customers and members of the public. Assess what control measures could be put in place

• Culture of transparency: workers should feel able to speak up and raise concerns without fear that they will not be taken seriously
• Clear procedure: make sure that the organisation has a clear procedure in place so that workers know how they can report concerns and what steps will then be taken
• Communicate zero-tolerance approach: include a sexual harassment statement in communication with third parties to inform them of your zero-tolerance stance. This could be in service contracts, client contracts, notices displayed on walls, etc. Any concerns raised should be taken seriously and fully investigated. Appropriate action should then be taken against the perpetrator
• Support: signpost workers to organisations where they can seek support and advice. Make sure that they know how they can access any Employee Assistance Programmes.

This is not an exhaustive list, and any measures should be tailored to the specific organisation and regularly reviewed.

What happens if there is a breach of the new preventative duty?

Workers cannot bring a claim to an employment tribunal for a breach of the preventative duty. They can, however, complain to the EHRC which has the power to take enforcement action against the employer. No allegations of sexual harassment are needed in order to raise this complaint.

Enforcement includes:

• investigating the employer
• issuing an unlawful notice if the employer is or has been the subject of an investigation, confirming that it has found an employer has breached the Act 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
• entering into a formal, legally binding agreement with an employer to prevent future unlawful acts
• asking the court for an injunction to restrain an employer from committing an unlawful act

If an employment tribunal finds that a worker has been sexually harassed and has ordered the employer to pay compensation to the worker, it must also consider if and to what extent the employer has complied with the preventative duty.

If the employment tribunal finds that the preventative duty has been breached, it may order the employer to pay additional compensation to the worker.

The amount of the compensation uplift must reflect the extent to which the employment tribunal considers the employer has not complied with the preventative duty and must be no more than 25% of the amount of compensation awarded to the worker for the sexual harassment.

For further information, support and advice on preparing for this new proactive duty, contact The HR Team