The Equality and Human Rights Commission (EHRC) has published updated guidance on how employers should comply with the new duty on employers to prevent sexual harassment in the workplace. The updated guidance is open for consultation until 6 August 2024.
The new duty to prevent sexual harassment in the workplace, which is set out in the Worker Protection (Amendment of Equality Act 2010) Act 2023, is due to come into force on 26 October 2024. The Worker Protection Act requires employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment.
However, it does not contain any details on what ‘reasonable steps’ would entail. The expectation had been that the updated guidance would fill in the gaps by providing details of practical measures for employers to take to comply with the new duty. Overall, the content of the updated guidance is light on detail and employers will be expected to work out what measures are reasonable for them taking into account factors such as the sector in which they operate as well as their size and resources.
Two particularly notable aspects of the updated guidance are the references to (i) preventing sexual harassment by third parties (despite it not having been reintroduced by the Act), and (ii) the EHRC’s active role in enforcing the duty.
An employer must take reasonable steps to prevent sexual harassment of its employees in the workplace. The new duty is an anticipatory duty, and employers should not wait until an incident of harassment has taken place or a complaint been raised before they take any action. Compliance will need to be considered in advance and will require planning and resources.
The duty is focused on sexual harassment only; it does not cover harassment related to a protected characteristic such as race or disability, nor less favourable treatment for rejecting or submitting to unwanted conduct.
The updated guidance provides that what is reasonable will vary from employer to employer and will depend on a range of factors including an employer’s size, the sector in which it operates and its resources. Whether or not an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances of each situation.
This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, we cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.
