Workplace sexual harassment: EHRC launches consultation on updated guidance

At a glance

• On 26 October 2024, new laws will put a new positive obligation on employers to take reasonable steps to prevent workplace sexual harassment.
• The Equality and Human Rights Commission (EHRC) has now issued a consultation seeking views on updates to its existing technical guidance (issued in 2020) assisting employers to understand their legal obligations.
• The consultation is only open for four weeks, until Tuesday 6 August 2024.

The EHRC has issued a consultation seeking views on a draft of its newly updated technical guidance assisting employers, workers and their representatives to understand how the Equality Act 2010 prohibits harassment at work. The consultation runs for a very short four week period, closing on 6 August 2024.

The amendments to the existing guidance take the form of a new section to be added to the existing guidance; however, there is currently significant confusion over references in this new section to paragraph numbers which do not appear to tally up with the existing guidance. It is to be hoped that the EHRC provides some speedy clarification so that meaningful responses to consultation can be made.

In the meantime, the consultation and proposed updated guidance come ahead of new laws protecting employees against sexual harassment which will take effect later this year.

On 26 October 2024, the new Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force. This legislation had a troubled route through Parliament and was significantly watered down. However, provisions finally agreed will:

• introduce a new positive legal obligation on employers to take reasonable steps to protect their workers from sexual harassment; and
• give employment tribunals the power to increase compensation by up to 25% where an individual succeeds in a claim for sexual harassment and the tribunal finds that the employer failed to take reasonable steps to prevent sexual harassment.

The proposed amendments to the guidance:

• make it clear that the preventative duty only applies to sexual harassment;
• require employers to take reasonable steps to prevent sexual harassment by their own workers and by third parties such as clients and customers (NB there is no direct employee protection against harassment by third parties as this was dropped from the final legislation);
• envisage that reasonable steps will vary depending on the size and resources of the employer but emphasise that no employer is exempt from the preventative duty;
• highlight that the preventative duty is an anticipatory duty ie that employers should undertake risk assessments to anticipate scenarios when its workers may be subject to sexual harassment and take action to prevent such harassment taking place; and
• explain that an individual cannot bring a claim for breach of the preventative duty alone but also makes clear that make clear that the EHRC has the power to take enforcement action against an employer who breaches the preventative duty.

Interestingly, this guidance has been published post-general election victory for the Labour party.  It does not take account of the Labour party's manifesto promise (see Safer workplaces – p.17) to '…strengthen the legal duty for employers to take all reasonable steps to stop sexual harassment before it starts.' It remains to be seen how quickly Labour will implement this promise and if / when it does, then presumably the guidance will need to be updated again.