Sexual harassment: EHRC publishes updated guidance on the new duty to prevent sexual harassment in the workplace

The updated technical guidance follows a short period of consultation this summer. Alongside the full guidance, the EHRC has produced a simple 8-step plan for employers.

A reminder of the current law

Sexual harassment is defined as unwanted conduct that is sexual in nature, where the purpose or effect of the conduct is to violate a person’s dignity or create an intimidating, hostile, degrading or offensive environment.

The Equality Act 2010 prohibits sexual harassment and employers are liable for harassment committed by their workers in the course of employment. However, employers will have a defence against claims if the employer can show that they took “all reasonable steps” to prevent the harassment.

New legal proactive duty

The new positive preventative duty is 'designed to transform workplace cultures'. It marks a change in emphasis from enforcing rights to prevention. Under new legislation, employers will be required to take "reasonable steps" to prevent sexual harassment. As such, the new law goes further than the current law and creates a positive legal obligation for employers to try to stop sexual harassment from happening in the first place by taking reasonable steps to prevent it. 

Enforcing the new duty

If employers fail to comply with the new duty they face both financial and reputational risks:

• If an employee succeeds with an employment tribunal claim for sexual harassment and the employer is found to have breached its duty to take reasonable steps to prevent sexual harassment, the employment tribunal can increase compensation for a successful claim of sexual harassment by up to 25%. As there is no cap to the compensation which can be awarded for discriminatory harassment, this uplift could be significant.
• The EHRC can also investigate employers and take enforcement action. Action can be taken based on a suspicion of non-compliance; there does not need to be an incident of sexual harassment before the EHRC will consider exercising its enforcement powers.

The new legislation originally sought to reintroduce liability for third party harassment, such as harassment of employees by clients and customers, service users and members of the public, but this was removed during the parliamentary process. However, the EHRC guidance states that the new duty will require employers to take reasonable steps to prevent sexual harassment by both their own workers and third parties. A failure to comply with the duty in relation to third parties is unlikely to lead to an uplift to compensation, because this only applies where the employer is legally liable for the sexual harassment. However, the EHRC’s powers of enforcement will apply in this scenario and the EHRC expects employers to treat sexual harassment by third parties as seriously as harassment within the workplace.

EHRC Guidance / Preparing for the new duty

The guidance explains that what constitutes "reasonable steps" is an objective test which will vary from employer to employer and will also depend on the facts and circumstances of each situation. Relevant factors include the size and resources of the employer, the diversity of the workforce, the sector the employer operates in and whether issues have been raised before. Since the consultation, the list of relevant factors in deciding whether a step is reasonable has been expanded considerably. It now includes taking into account the nature of the working environment, the time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve. The guidance also now includes more examples of what compliance might look like, expanding on the pre-consultation draft which focused more on what non-compliance looks like.

The revised guidance also stresses that risk assessments are critical to being able to demonstrate the duty has been discharged. The guidance makes it clear that an employer "is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment."

As well as risk assessments, the EHRC's 8-step employer guide advises employers to take these key steps:

• Develop an effective policy;
• Ensure staff engagement;
• Use a reporting system;
• Conduct effective training;
• Set out a clear complaint handling process;
• Ensure effective processes to deal with (and prevent) third party harassment; and
• Monitor and evaluate effectiveness.

What does this mean for employers?

There is no additional stand-alone claim under the new legislation. However, employers that neglect to prepare for this new duty could face an increase in harassment claims. In addition, the claims could be more costly. The EHRC guidance is not legally binding but employment tribunals are likely to rely on it as a key source when deciding if an employer has met the new legal duty. Employers may also face investigation and enforcement action from the EHRC.

Employers should consider the steps they need to take, in light of the new legislation and the revised guidance from the EHRC. The overall theme in this new duty is that employers must be proactive. Regulated employers should also ensure that they consider separately any specific guidance set out by their regulator. It is also important to note that compliance with this new duty should be a continuing process. So, whether you have already taken measures to comply, or not yet taken any action, there’s still time to put in place further measures and continue to develop them.

Our team can help you get ready with advice on all of the aspects of this article, including appropriate risk assessment measures, and with the drafting and implementation of policies and training programmes.

Looking forward, further changes have been proposed by the government in the Employment Rights Bill 2024. The government intends to expand the new duty to require employers to take "all reasonable steps" to prevent harassment occurring (not just "reasonable" ones). It also intends to make employers liable for harassment by customers and any other third party unless they again take all reasonable steps to prevent harassment. These changes are unlikely to come into effect until mid/late 2026.