Equality and Human Rights Commission publishes updated technical guidance following consultation regarding the new duty to prevent sexual harassment

On 26 October 2024 the new duty to prevent sexual harassment in the workplace will come into force. The new duty requires employers to take reasonable steps to prevent sexual harassment taking place. Failure to comply with this duty can lead to enforcement action from the Equality and Human Rights Commission (EHRC) or, where an employee is successful in bringing a claim which relates to sexual harassment, a potential 25% uplift in Employment Tribunal compensation.

The EHRC consulted on proposed amendments to its technical guidance on sexual harassment to account for this new duty prior to August 2024. The EHRC has now published the final form of its technical guidance to assist both employers and workers.

The updated technical guidance includes the following developments:

1. A new 8-step guide for employers

Alongside the technical guidance, there is an 8-step guide on how to prevent sexual harassment in the workplace. The list is described as being non-exhaustive but the guidance states that taking these steps “should help [employer’s] take positive action to prevent and deal with sexual harassment at work.” The recommended steps for employers are as follows:

• Develop an effective anti-harassment policy
• Engage your staff
• Assess and take steps to reduce risk in your workplace
• Consider reporting procedures
• Consider training arrangements
• Consider what to do when a harassment complaint is made
• Consider how to deal with harassment by third parties
• Monitor and evaluate your actions

2. Reasonable Steps

The consultation document includes details of the factors that would be considered in respect of whether an employer took reasonable steps to prevent sexual harassment. This includes factors like the size and resources of the employer as well as the sector the employer operates in. The technical guidance adds new factors which may be relevant, including the following considerations:

1. The likely effect of taking a particular step and whether an alternative step could be more effective.
2. The time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve.
3. Whether concerns have been raised with an employer that sexual harassment has taken place (it would likely be reasonable for the employer to take steps to investigate and ensure it does not happen again).
4. Compliance with any relevant regulatory standards (for example, standards set by the Financial Conduct Authority or General Medical Council).
5. Whether steps taken appear to have been effective or ineffective, for example, if a further incident of sexual harassment occurs after steps have been taken, this may indicate that additional or alternative action should be considered.
6. A step may be reasonable, even if it would not have prevented a particular act of sexual harassment.

The new guidance also confirms that the new duty is different from the “all reasonable steps” defence an employer can run to avoid or limit liability for the actions of their employees. The technical guidance does not make it clear how it differs, however.

3. Risk assessment

The technical guidance is clear that “an employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment.” The guidance contains detailed guidance on the factors which may be relevant to the assessment of risk at an organisation including: power imbalances, job insecurity (for example, use of zero hours contracts), agency staff or contractors, workers being placed on secondment and the demographic makeup of the workforce. The guidance gives the example of the risk of sexual harassment being potentially higher in a predominantly male workforce.

4. Third parties

The duty to prevent sexual harassment extends to preventing harassment of workers from third parties. The new guidance adds that while employees do not currently have a right to bring a claim of third-party harassment against an employer, employers can be found to have breached the duty where they fail to prevent sexual harassment (and are therefore exposed to the potential uplift in damages). The guidance also gives an example of where the failure to take steps to prevent sexual harassment by third parties could constitute indirect discrimination.

Next steps

The duty to prevent sexual harassment comes into force on 26 October 2024. The new technical guidance does not just cover sexual harassment but harassment in the workplace more generally, so it is important that employers review this new guidance and the steps it suggests taking to comply with this new duty.

The technical guidance can be read here.

The 8-step guide can be read here.