As of today, the Equality and Human Rights Commission (EHRC) has closed the consultation on its technical guidance in relation to the new mandatory duty to prevent sexual harassment in the workplace.
Background to the consultation
In response to a consultation on workplace sexual harassment launched in 2019, the UK government committed to introduce a new duty for employers to prevent sexual harassment. This led to the enactment of the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act), which is due to come into force in October 2024.
The Act will update the Equality Act 2010 (EA 2010) to introduce a duty on employers to take reasonable steps to prevent their employees from being sexually harassed, as well as giving employment tribunals the power to uplift compensation in sexual harassment claims by up to 25% where an employer is found to have breached the new duty.
When the Act was passed, considerable questions remained around what ‘reasonable steps’ means, when and how employers should take action, and when the EHRC would exercise its enforcement powers. In order to answer some of these questions, the EHRC committed to update the EHRC Code and the technical guidance on the EA 2010. Accordingly, four weeks ago in July 2024, the EHRC published its draft updated technical guidance and initiated a consultation on this guidance.
Contents of the EHRC’s draft guidance
An anticipatory duty
The new guidance emphasises that the duty to prevent sexual harassment is anticipatory, so employers should not wait until sexual harassment happens before taking action. Employers should instead anticipate scenarios in which sexual harassment might arise and proactively stop any sexual harassment from happening. If, however, sexual harassment does take place, the duty includes an obligation on employers to actively prevent recurrence. The duty also explicitly includes an obligation on employers to prevent sexual harassment by third parties.
The guidance outlines that, in order to comply with their preventative duties, employers will need to consider the risks of sexual harassment occurring in the workplace, consider what steps they could take to minimise those risks, consider which of those steps would be reasonable to take, and implement those steps.
What are reasonable steps?
The guidance also sets out that what ‘reasonable steps’ means will vary depending on the size of the employer, the nature of the workplace, the risks present in that workplace, the types of third parties workers may have contact with and the likelihood of workers coming into contact with such third parties. The reasonableness of any given step will also depend on the time, cost and potential disruption caused by taking that step.
As an example, the guidance suggests that a small company with limited resources might decide against paying for an external training provider to conduct their sexual harassment training due to the disproportionate cost relative to the company’s size. The implication is that larger companies with greater means should perhaps be considering whether instruction from such external providers would in fact be a ‘reasonable step’, given the resources available to them.
Enforcement powers
The guidance further outlines that, when the Act comes into force, the EHRC will have the power to investigate employers, issue unlawful act notices, enter into legally binding agreements with employers to prevent future unlawful acts, and ask the court for injunctions to prevent employers from committing unlawful acts.
Importantly, the EHRC can use any of these powers if they suspect that the preventative duty has not been complied with. An incident of sexual harassment does not need to have occurred for the EHRC to exercise its enforcement powers.
What next?
Employers and individuals were given the opportunity in the consultation survey to set out any areas in the guidance that they feel lacked clarity and to offer comments on the substantive content and the examples in the guidance. Now the consultation has closed, the EHRC will review responses and publish an updated version of the guidance in due course.
In the meantime, it would be prudent for employers to review their current sexual harassment policies. Although the new preventative duty is not yet in force, employers will want to have fully audited their current policies (and the risk prevention steps underlying those policies) to ensure that they will be fit for purpose come October when the Act takes effect.
