UK – Sexual Harassment – New Duty To Prevent: EHRC Consultation On Updated Technical Guidance.
Employers will soon be under a new mandatory duty to take ‘reasonable steps’ to prevent sexual harassment of their employees in the course of their employment, when the Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force on 26 October 2024. This also gives employment tribunals the power to uplift a worker’s compensation by up to 25% where an employer is found to have breached the new preventative duty. Plans to reintroduce third-party discrimination were abandoned last year.
In anticipation of the new preventative duty coming into force, the Equality and Human Rights Commission (EHRC) has recently launched a four-week public consultation on updated technical guidance. In summary, key points arising from the new section of draft technical guidance (which at this point remains subject to amendment) include:
- The new preventative duty is ‘anticipatory’ in nature: The new duty to take reasonable steps to prevent sexual harassment is an ‘anticipatory’ duty, so employers should anticipate scenarios when workers may be subject to sexual harassment in the course of their employment and take action to prevent such harassment taking place. If it has already taken place, the employer should take action to prevent it happening again. When considering whether an employer has taken ‘reasonable steps’ to prevent sexual harassment, the tribunal will consider any steps taken by an employer following past complaints of sexual harassment / an employer’s failure to take action to reduce identifiable risks.
- The new preventative duty extends to harassment by third parties: The new duty requires employers to take ‘reasonable steps’ to prevent sexual harassment of their workers in the course of their employment. This extends not only to sexual harassment by other workers (i.e. managers, colleagues), but also the prevention of sexual harassment by third parties (e.g. customers, clients, service users, patients, friends and family of colleagues, delegates at a conference and members of the public). If an employer does not take reasonable steps to prevent sexual harassment of their workers by third parties, the preventative duty will be breached. Employers should therefore consider the risk of workers encountering third parties and of sexual harassment occurring in different situations and take reasonable steps to prevent it.
- ‘Reasonable steps’ will vary from employer to employer: This is an objective test and what preventive steps are ‘reasonable’ will depend on factors such as (but not limited to):
- the size of the employer and its resources
- the sector it operates in
- the nature of the workplace
- the risks present in that workplace
- the types of third parties workers may have contact with
- the likelihood of workers encountering such third parties
In deciding whether a particular step is ‘reasonable’, an employer should consider its likely effect and whether an alternative step could be more effective. Employers are ‘entitled to weigh how effective a step might be against other factors such as the time, cost and potential disruption that may be caused in taking the step’.
- Risk assessments are encouraged: an employer should consider conducting risk assessments which list the identified sexual harassment risks arising from staff or third parties, record possible options to mitigate those risks, outline any implementation costs, consider the likely success of the interventions being successful, and record the steps the employer has ultimately decided to implement.
- Use of EHRC enforcement powers if employer does not comply: The EHRC has the power to take enforcement action against the employer where an employer has failed to comply with the new preventative duty and exercising those powers ‘does not depend on any incident of sexual harassment having taken place’. The EHRC has the power:
- to investigate
- to issue an unlawful act notice
- to enter into a legally binding agreement with an employer to prevent future unlawful acts
- to ask the court for an injunction to restrain an employer from committing an unlawful act
- Up to 25% uplift for failure to take reasonable preventative steps: An employment tribunal will be able to consider the EHRCs updated technical guidance when deciding whether an employer has complied with its preventative duty and can uplift compensation by up to 25% it decides that there has been a failure to take reasonable preventative steps.
For further information, please contact:
Emma Ahmed, Hill Dickinson
emma.ahmed@hilldickinson.com
