Prevention rather than cure – what are the new sexual harassment duties?

The Equality and Human Rights Commission (EHRC) has published its updated guidance on sexual harassment and harassment at work. The updated guidance specifically addresses the new duty on employers to take reasonable steps to prevent sexual harassment in the workplace which comes into force on 26 October 2024.

If employers fail to comply with the new duty, the EHRC can take enforcement action. In addition, compensation in a successful harassment claim may be increased by up to 25%.

The updated guidance includes a number of practical examples and suggestions which the EHRC considers employers should take in order to comply with the new preventative duty.

Reasonable steps

What constitutes "reasonable steps" will vary from employer to employer and is an objective test. The guidance states that some relevant factors may include the size and resource of the employer, the sector the employer operates in and the nature of any contact with third parties. There is no one size fits all approach, making it harder for employers to know what steps employers should take on or before 26 October.

However, the new guidance notes that employers are unlikely to comply with the preventative duty unless they carry out a risk assessment and that employers should produce "action plans" and consider publishing their action plans to workers and the public. In addition, employers should ensure their policies are effective and updated regularly, and that staff (including managers) are trained properly.

Employers therefore need to carefully consider how this new duty will apply to them, and whether in light of the new guidance they are taking reasonable steps to comply with the new duty from 26 October 2024.

Third Party Harassment

The guidance notes that the preventative duty extends to harassment by third parties, which could include customers, clients, self-employed contractors or freelancers, service users, patients, students, friends and family of colleagues, delegates at a conference and members of the public. Whilst the new duty does not reintroduce a standalone right for third party harassment (which was repealed in 2013), it does impose onerous duties on employers to consider how it can prevent sexual harassment by third parties.

The guidance also suggests what employers should include in their policies, which includes outlining third party harassment and what steps will be taken to prevent and remedy third party harassment complaints.

What should employers be doing to prepare?

Whilst the EHRC's guidance is not legally binding, employers will need to consider the EHRC's updated guidance and assess what action should be taken prior to 26 October 2024 to ensure they comply with the new duty. Given the lack of case law, the EHRC's guidance is the best guidance employers can rely on for now.

The EHRC has also published a 8-step guide for employers listing practical steps which employers could take to prevent and deal with sexual harassment in the workplace.

The updated guidance has given employers a lot to do, with not much time to act.

Further information

For more information on any of the issues raised in this briefing, please speak to your usual Ashurst contact or to any of the people whose contact details are given below.