EHRC Consultation - Prevention of Sexual Harassment

On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the “Act) will come into force. The Act introduces a new duty on employers to take reasonable steps to prevent sexual harassment  in the workplace. Whilst this new duty does not give rise to a standalone claim, an Employment Tribunal will have the power to increase compensation awards by up to 25% if the employer is found to be in breach of the new duty. In addition, the Equality and Human Rights Commission (EHRC) will also have the power to take enforcement action against employers in breach. 

The EHRC initially published technical guidance on sexual harassment and harassment in the workplace in January 2020. The purpose of that guidance was to help employers understand and comply with their obligations under the Equality Act. The EHRC has now updated its guidance to include the new preventative duty, and as a result, has launched a six-week consultation in respect of the proposed amendments. 

What are the proposed amendments?

There is a new section within the ‘obligations and liabilities under the Act’ chapter, as well as other minor amendments throughout the rest of the guidance. This clearly states that employers should not wait until an incident of sexual harassment has taken place before taking action, and that employers should anticipate scenarios when its workers may be subject to sexual harassment within the workplace. The guidance also provides example scenarios and explains that “reasonable steps” will vary from employer to employer, with no particular criteria or minimum standard. However, whether or not an employer has taken reasonable steps will be an objective test relating to the facts of the case in question. 

Interestingly, the amended guidance also states that "the preventative duty includes prevention of sexual harassment by third parties. Therefore, if an employer does not take reasonable steps to prevent sexual harassment of their workers by third parties, the preventative duty will be breached". Liability for third party harassment was removed from the original Act, but it certainly looks as though the EHRC intends to use its enforcement powers if it finds that an employer has failed to protect its workers from sexual harassment by third parties.

The EHRC’s enforcement powers include:

•    Investigations
•    Issuing unlawful act notices 
•    Entering into formal, legally binding, agreements to prevent future unlawful acts
•    Asking the Court for injunctions 

The consultation is open until 6 August 2024.

Next Steps

As we have previously reported, employers really need to start reviewing, updating and/or creating policies to deal with harassment and sexual harassment in the workplace. In addition, employers need to deliver mandatory training and look at ways of improving awareness, as well as carrying out fundamental risk assessments to ensure key preventative measures are in place. 

Should you require any assistance to ensure you and your organisation are fully prepared, please click here to see how Bevan Brittan’s expert team are able to help and support you.