There are just a few days remaining to respond to the consultation by the Equality and Human Rights Commission (the EHRC) on its proposed updates to its guidance on preventing workplace sexual harassment.
The EHRC’s consultation is in preparation for the changes to the law on workplace sexual harassment which will be introduced under the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act) that is due to come into force on 26 October 2024.
The Act will introduce a new positive legal obligation on employers to take reasonable steps to protect their workers from sexual harassment (the Preventative Duty). For a more in-depth look at this duty, please see our previous blog, linked here. Our previous post includes details of the important consequences of a breach of the new duty such as (a) the new enforcement powers afforded to the EHRC; and (b) the new power granted to employment tribunals to increase compensation for sexual harassment.
The EHRC originally issued its technical guidance on sexual harassment and harassment at work in January 2020 to help employers, workers and their representatives understand how the Equality Act 2010 prohibits harassment at work. This guidance provided advice on the types of actions employers can take to prevent and respond to workplace harassment.
The EHRC has now updated this guidance to include information on the new Preventative Duty to help employers understand their new obligations. Other minor changes have also been made to the rest of the guidance to reflect recent case law and the Equality Act 2010 (Amendment Regulations) 2023.
In particular, the new guidance explains that the Preventative Duty will require employers to anticipate scenarios in which their workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place. Where sexual harassment has already taken place, the duty will require employers to take action to stop it from happening again.
Crucially, although the proposed extension of liability for harassment of third parties was removed from the final draft of the Act, the EHRC draft guidance indicates that the new Preventative Duty will in fact apply in relation to harassment both by other employees and by third parties. Practically, this means that if an employer is failing to protect its employees from sexual harassment by third parties, the EHRC may use its enforcement powers (detailed in the blog linked above) even though, under the Act, an employee who was harassed by a third party may still find it difficult to bring a free-standing tribunal claim.
The consultation is set to close on 6 August 2024.
