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EHRC Consultation: Updated Guidance on Preventing Sexual Harassment

July 11, 2024

The law on preventing sexual harassment in the workplace is changing. If you have read my last blog (and I hope you have!) you will know that on 26 October 2024, the new mandatory duty requiring employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment will come into force. This week, the Equality and Human Rights Commission (EHRC) launched a consultation on its technical guidance on sexual harassment and harassment at work.

Four years ago, the EHRC issued technical guidance on this topic with the goal of educating employers, workers and their representatives on the prohibitions on harassment at work found in the Equality Act 2010. This guidance also provided advice on the types of actions employers could take to prevent and respond to workplace harassment. This document was due to be updated to reflect the new preventative duty and to assist employers in understanding their new obligations.

The consultation is only open for a very short four weeks, until Tuesday 6 August 2024. The proposed amendments add a new section to the existing guidance, and further changes have been made to reflect relevant recent case law and the recent Equality Act 2010 (Amendment Regulations) 2023. The consultation taking place is to ensure that this new section of the guidance is clear and helpful.

The new wording provides guidance on:

The duty on employers to prevent sexual harassment of workers (3.16)

  • the preventative duty (what it means and when it applies);
  • the reasonable steps employers can take to comply with the duty and the factors that would be taken into account when considering whether a step is reasonable; and
  • the consequence of a breach (including the enforcement powers of the EHRC);
  • employment tribunals will also have the power to increase compensation for sexual harassment by up to 25% (this is important – an employee cannot claim for a breach of the new duty on its own, it is only engaged in a claim for actual sexual harassment);
  • the preventative duty only applies to sexual harassment. It does not cover harassment related to a protected characteristic (including sex), nor does it apply to less favourable treatment for rejecting or submitting to unwanted conduct.

Sexual harassment of workers (3.24)

  • what sexual harassment is (the definition, when the preventative duty applies, and who sexual harassment can be committed by – another worker, an agent acting on behalf of the employer, or a third party);
  • notably, the preventative duty includes taking reasonable steps to prevent sexual harassment by third parties (even although there is no direct claim under the Equality Act for harassment by third parties).

Reasonable steps (3.28)

  • what qualifies as reasonable steps varies from employer to employer and will depend on factors such as (but not limited to): the employer’s size, the sector in which it operates, the working environment and its resources. There are no particular criteria that an employer must meet, but no employer is exempt from the preventative duty;
  • whether or not an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances of each situation;
  • an employer should (a) consider the risks of sexual harassment occurring in the course of employment, (b) consider what steps to take to prevent this, (c) consider which of those steps are reasonable, (d) implement these steps;
  • chapter 4 of the guidance provides detailed information on practical steps employers can take to comply with the preventative duty.

EHRC enforcement (3.37)

  • if an employer doesn’t comply with the preventative duty, the EHRC have the power to take enforcement action against the employer. Under the Equality Act 2006, EHRC has powers to:
    • investigate an employer;issue an unlawful act notice confirming that they have breached the Act and must now prepare an action plan setting out how it will remedy any continuing breach of the law and prevent future breaches;enter into a formal, legally binding agreement with an employer to prevent future unlawful acts; and
    • ask the court for an injunction to restrain an employer from committing unlawful acts.
  • EHRC can use one of the enforcement powers to take action of they suspect the preventative duty hasn’t been complied with.

Increase in compensation for sexual harassment (3.40)

  • if an employment tribunal finds that a worker has been sexually harassed and has ordered the employer to pay compensation to the worker, it must consider if and to what extent the employer has complied with the preventative duty;
  • if the employment tribunal decides that the preventative duty has been breached, it may order the employer to pay additional compensation to the worker (compensation uplift);
  • the compensation uplift must reflect the extent to which the employment tribunal considers the employer has not complied with the preventative duty. It must be no more than 25% of the amount of compensation awarded to the worker; and
  • compensation for sexual harassment can include compensation for both past and future loss of earnings, injury to feelings and personal injury.

While this guidance is being consulted over the next four weeks, it also comes just post-general election victory for the Labour party. Our new government’s party manifesto promises to: “… strengthen the legal duty for employers to take all reasonable steps to stop sexual harassment before it starts.” It will be interesting to see how quickly and effectively Labour will implement this promise and if/when it does, we can safely assume that the guidance will need to be consulted and updated again!  

If you have any questions on this or on any other area of Employment law, please get in touch with the Blackadders Employment team, working in Aberdeen, Dundee, Edinburgh, Glasgow and across Scotland.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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