The Equality and Human Rights Commission (EHRC) has issued a consultation on the wording of new technical guidance on the duty to take reasonable steps to prevent sexual harassment in the workplace.
The consultation runs until 6 August. The duty on employers to take reasonable steps to prevent sexual harassment of their employees will come into force on 26 October 2024.
The EHRC guidance highlights that the duty is "anticipatory", i.e. employers should not wait for sexual harassment to happen before taking action. If sexual harassment has taken place, the employer should take steps to stop it happening again. Guidance is given on the reasonable steps that employers may take. The potential consequences of failing to comply with the duty include enforcement action by the EHRC (which does not depend on any incident of sexual harassment having taken place) and a new power for tribunals to increase compensation by up to 25% where an individual succeeds in a sexual harassment claim and the employer has not complied with the preventative duty.
The preventative duty also covers harassment by third parties, so the EHRC's enforcement powers will apply when this occurs. It's worth noting however that an employee harassed by a third party in the course of their employment may potentially be left with no legal redress as the Worker Protection (Amendment of Equality Act 2010) Act 2023 does not re-introduce employer liability for the sexual harassment of employees by third parties (this used to appear in the Equality Act, but the relevant provisions were repealed). As originally drafted, the Bill introducing the Worker Protection Act would have re-introduced employer liability for the sexual harassment of employees by third parties, but these provisions were removed from the Bill.
