Legal spotlight

EMPLOYERS IN the UK should pay close attention to the risk assessment approach and business-specific preventative steps proposed by the Equality and Human Rights Commission (EHRC), which is in the process of changing its guidance on preventing workplace sexual harassment.

The proposed changes have been set out in a consultation by the EHRC, in light of the new duties to be imposed on British employers to prevent workplace sexual harassment. The new rules have been introduced by the Worker Protection (Amendment of Equality Act 2010) Act 2023, which comes into force on 26 October 2024.  The changes in equality law place a new positive legal obligation on employers to take reasonable steps to protect their workers from sexual harassment. 

In January 2020, the EHRC issued technical guidance on sexual harassment and harassment at work to help employers, workers and their representatives understand how the Equality Act 2010 prohibits harassment at work. It also provides advice on the types of actions employers can take to prevent and respond to workplace harassment.  

The consultation seeks views on updates to that guidance, including information on the new preventative duty so that employers understand their new obligations under equality law.

The key focus is on prevention, anticipating scenarios by taking a risk assessment approach. The proposed changes contain examples of this, and of potential preventative steps arising from the risk assessment. These will be business and potentially area specific. A large employer may have to take a different approach for customer-facing areas of its business for example.

According to the proposed changes to the guidance, what is reasonable will vary from employer to employer and will depend on factors such as the employer’s size, the sector in which it operates, the working environment and its resources. There are no particular criteria or minimum standards an employer must meet. Different employers may prevent sexual harassment in different ways, but no employer is exempt from the sexual harassment preventative duty.

The consequences for employers that breach the preventative duty are also made clear in the draft. The EHRC will have the power to take enforcement action if it suspects the preventative duty has not been complied with, and action can be taken even before any incident arises.  Another new consequence is the potential to uplift compensation. An employment tribunal will be given the power to apply an uplift of up to 25% on tribunal awards where the duty to prevent sexual harassment is not been complied with.

Although not dealt with in the guidance, the potential reputational damage for employers found to have a culture where harassment exists or is not addressed must not be forgotten, or underestimated.

Another important update proposed by the EHRC is to expressly refer to third party harassment in its guidance. The proposed changes make it clear that sexual harassment of a worker can be committed by a third party and that the preventative duty is to include prevention of sexual harassment by third parties.  However, questions remain relating to uplift of awards and enforcement powers over harassment committed by a third party - as the law currently stands it is difficult to see how any claim in relation to failure to prevent third party harassment could attract any uplift to a tribunal award.  Clarification may be provided on the scope and intention around this following consultation.

The final form of the guidance and the new duty may still be subject to change by the newly elected Labour government. The Labour party has previously indicate that they would expand the duty to taking all reasonable steps, rather than just reasonable steps. 

The EHRC’s consultation closed on 6 August 2024.

Helen Corden is UK head of employment and reward at Pinsent Masons. For more information, visit www.pinsentmasons.com