Equality and Human Rights Commission launches consultation on draft guidance on duty to prevent sexual harassment

The Worker Protection (Amendment of Equality Act 2010) Act 2023 was passed last year and makes provision for the introduction of a duty on employers to take reasonable steps to prevent sexual harassment of their employees. This duty will come into force on 26 October 2024.

It was anticipated that the Equality and Human Rights Commission (“EHRC”) would provide updated guidance for employers on this duty and the EHRC has launched a consultation on its draft guidance on this duty.

While this guidance is still in draft form, and potentially subject to change, there are some points which employers should note from the draft guidance:

1. The duty is described as an “anticipatory” duty. It is therefore expected that employers should not wait for an instance of sexual harassment before taking action. It is suggested that employers anticipate scenarios where employees could be subject to sexual harassment and take reasonable steps to prevent this risk from materialising. Examples are provided below.
2. That the duty will extend to preventing sexual harassment by third parties (such as customers, clients, etc) and a failure to prevent harassment by third parties would be a breach of the duty. Therefore, employers need to assess the risk of third parties sexually harassing their staff and what measures should be taken to prevent this.
3. There are no set “reasonable steps” that an employer is required to take and what is required of an employer will depend on a number of factors including its size and resources. However, the guidance gives a number of worked examples of actions employers may want to consider to comply with the duty which include:
   1. Updating its policies and procedures
   2. Updating its training regime and considering different training for different members of staff
   3. Implementing a process for reviewing the effectiveness of policy and training
   4. Creating a protocol for reporting harassment
   5. Informing third parties of the policies and commitments concerning harassment.

The consultation is open until 6 August 2024 and includes a number of questions and an opportunity to provide further comments.

Employers can view the draft guidance and provide responses to the consultation here.