The new positive duty on employers, introduced by the Worker Protection (Amendment of Equality Act 2010) Act 2023 (‘the Act’), to take ‘reasonable steps’ to prevent sexual harassment in the workplace, comes into force on 26 October 2024.

 

The Equality and Human Rights Commission (EHRC) recently updated its guidance on Sexual Harassment and Harassment at Work (issued in 2020), to include a section on this new duty and help employers to understand their obligations under this new duty.  The updated guidance remains open for consultation until 6 August 2024.

 

Anticipatory duty

 The guidance emphasises that the new duty is anticipatory -Employers should not wait until an incident of sexual harassment has taken place before they take any action. It states that an employer should:

  • Consider the risks of sexual harassment occurring in the course of employment
  • Consider what steps it could take to reduce those risks and prevent sexual harassment of their workers
  • Consider which of those steps it would be reasonable for it to take
  • Implement those reasonable steps


Reasonable steps

While these concepts are useful,  there is relatively little in the way of specifics regarding the measures employers are expected to take, or concrete examples of what ‘reasonable steps’ look like in practice. 


Rather, the guidance refers—in broad terms—to accounting for factors such as the sector the employer operates in, their size, working environment and resources. That said, employers can look to the EHRC’s existing guidance for practical steps an employer can take to prevent sexual harassment in the workplace. Those steps include: 

  • Having effective policies and procedures;
  • Raising awareness of anti-harassment policies;
  • Addressing power imbalances; 
  • Delivering training.  

The guidance also sets out examples of ‘workplace risk factors’ such as power imbalances, job insecurity, lone working, the presence of alcohol, customer-facing duties, particular events that raise tensions locally or nationally, lack of diversity in the workforce and workers being placed on secondment.

 

Enforcement

If an employer does not comply with the new preventative duty, any compensation awarded for sexual harassment can be increased by up to 25%. 

 In addition, the EHRC can take enforcement action against the employer. Employers should take note that sexual harassment does not have to have taken place before the EHRC will consider exercising its enforcement powers. 

So, a lack of effective reporting systems or training could of themselves prompt action from the EHRC. Intervention by the EHRC brings a reputational risk, as well as potentially negatively impacting procurement processes.


Harassment by third parties

Perhaps the most significant (and surprising) introduction is the statement, on more than one occasion, that the new duty includes the prevention of sexual harassment by third parties.


Two out of the three examples given in the guidance relate to risks created by third parties. The Act does not reintroduce employer liability for third-party harassment and, indeed, a clause to this effect was expressly removed from an earlier version of the bill.  

On the face of it, the guidance is at odds with the scope of liability created by the Act.  


Where does this leave employers? And in fact, employees seeking to bring claims?  On the one hand, additional risk seems to have been created for employers who don’t take practical steps to prevent sexual harassment by customers, clients, service users, etc.  

On the other, given the absence of legal liability, it is hard to see how individuals will be able to enforce this obligation. However, there surely must be the possibility that the EHRC will seek to police the duty using their enforcement powers.


Of course, the new guidance may be amended in response to the consultation feedback. That said, Labour’s ‘New deal for working people’ included a commitment to “create and maintain workplaces and working conditions free from harassment, including by third parties.”  


This might suggest that Labour intends to reintroduce employer liability for sexual harassment by third parties. Labour has also said it will strengthen the new duty to require employers to take ‘all reasonable steps’ to prevent workplace sexual harassment.


For now, it is a question of ‘watch this space’ for further developments/clarification but in the meantime, it would seem that employers, particularly those in retail and hospitality, will need to assess the risk of harassment posed by third parties and take action to reduce these.