Article by 
CMS Cameron McKenna Nabarro Olswang LLP
On 9 July 2024, the Equality and Human Rights Commission (EHRC) published updated guidance on how employers should comply with the new duty on employers to prevent sexual harassment in the workplace. The relatively short new chapter will be inserted into the EHRC’s existing technical guidance Sexual harassment and harassment at work which was published in 2020. The updated guidance is open for consultation until 6 August 2024.
The new duty to prevent sexual harassment in the workplace, which is set out in the Worker Protection (Amendment of Equality Act 2010) Act 2023, is due to come into force on 26 October 2024. The Worker Protection Act requires employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. However it does not contain any details on what ‘reasonable steps’ would entail. The expectation had been that the updated guidance would fill in the gaps by providing details of practical measures for employers to take to comply with the new duty. Overall, the content of the updated guidance is light on detail and employers will be expected to work out what measures are reasonable for them taking into account factors such as the sector in which they operate as well as their size and resources.
Two particularly notable aspects of the updated guidance are the references to (i) preventing sexual harassment by third parties (despite it not having been reintroduced by the Act), and (ii) the EHRC’s active role in enforcing the duty. Further detail about the updated guidance (which may yet be amended based on consultation feedback), and what steps employers should take to prepare for the new duty are outlined below.
New duty to prevent
The Worker Protection Act introduces a new mandatory duty on employers to prevent sexual harassment in the workplace. An employer must take reasonable steps to prevent sexual harassment of its employees in the workplace. The new duty is an anticipatory duty, and employers should not wait until an incident of harassment has taken place or a complaint been raised before they take any action. Compliance will need to be considered in advance, and will require planning and resources.
The duty is focused on sexual harassment only; it does not cover harassment related to a protected characteristic such as race or disability, nor less favourable treatment for rejecting or submitting to unwanted conduct.
Reasonable steps
The updated guidance provides that what is reasonable will vary from employer to employer and will depend on a range of factors including an employer’s size, the sector in which it operates and its resources. Whether or not an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances of each situation.
The updated guidance states that an employer should:
- consider the risk of sexual harassment occurring in the course of employment;
- consider what steps it could take to reduce those risks and prevent sexual harassment of its workers;
- consider which of those steps it would be reasonable to take; and
- implement those reasonable steps.
This means that assessing risks relating to sexual harassment will be a key first step towards compliance with the new duty. Risk assessments will involve identifying ‘risk hotspots’ within the workplace, and steps that might be taken to mitigate those risks. The EHRC’s existing guidance sets out the following examples of workplace risk factors:
- 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
- workers being placed on secondment.
Other well-known risk hotspots include inappropriate text and WhatsApp messages and personal relationships at work.
The updated guidance refers to the EHRC’s existing guidance on 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 and delivering training. The EHRC, together with UKHospitality (a trade body for the hospitality sector), developed a useful checklist and action plan in 2022 that can be adapted for other employers operating in other sectors to help demonstrate compliance with the new duty: Preventing sexual harassment – UKHospitality. The EHRC’s seven-step guide to preventing sexual harassment is also a useful, practical resource.
Harassment by third parties
The updated guidance states that the new duty “includes prevention of sexual harassment by third parties” (see paragraph 3.27). This is a surprising addition to the guidance. The Worker Protection Act does not reintroduce employer liability for harassment by third parties despite an early version of the legislative bill seeking to do this. Under the Equality Act 2010, an employer is not liable for failing to protect a worker from third party harassment. Of course, this ambiguity could be a point that is raised and/or resolved as part of the consultation on the new guidance.
While it may seem odd that an employer is under a duty to take steps to prevent sexual harassment in the workplace by third parties (such as customers, clients, service users, patients etc) where it has no direct legal liability, this seems like an obvious risk area where practical steps could be taken to reduce that risk. It is therefore an understandable aspect of the new duty although it is difficult to see how it might bite in practice given the absence of direct legal liability in this regard.
Of the three workplace examples mentioned in the new guidance, two refer to the risks arising from third parties. The first example (see paragraph 3.27) explains that despite taking other steps, because the employer had failed to consider (i) the risk its workers could be sexually harassed by customers attending its premises to collect orders, and (ii) if there were reasonable steps it could take to prevent that risk, it had failed to comply with the preventative duty and the EHRC could take enforcement action against the company.
Enforcement
If an employer does not comply with the new preventative duty, there are two consequences: (i) the EHRC can take enforcement action against the employer, and (ii) where a complaint of sexual harassment succeeds in the employment tribunals, any compensation awarded can be increased by up to 25%.
EHRC enforcement action
Although the EHRC’s enforcement powers are mentioned in the Worker Protection Act, prior to the publication of the updated guidance, more attention had been paid to the increase in compensation. However, the EHRC makes clear in the updated guidance that it can take enforcement action against an employer who has failed to comply with the preventative duty and that it has various powers in this regard which include the ability to:
- investigate an employer;
- issue an unlawful act notice;
- enter into a formal, legally binding agreement with an employer to prevent future unlawful acts (known as a ‘section 23 agreement’); and
- ask the court for an injunction to restrain an employer from committing an unlawful act.
Action can be taken based on a suspicion of non-compliance; there does not need to be an incident of sexual harassment before the EHRC will consider exercising its enforcement powers. This could mean that poor systems alone prompt action from the EHRC. Enforcement action by the EHRC carries reputational risk, and can also create issues for procurement processes. Although the EHRC has entered into a number of high profile section 23 agreements with household names relating to workplace sexual harassment in recent years, the adequacy of the resources available to the EHRC may remain a barrier to enforcement action other than in the most serious cases of non-compliance.
Increase in compensation
If a tribunal makes an award of compensation for sexual harassment, then it must consider if and to what extent the employer has complied with the preventative duty.
The updated guidance states that the amount of the compensation uplift must reflect the extent to which the employment tribunal considers the employer has not complied with the preventative duty. The guidance includes an example of a 10% uplift being applied in circumstances where an employer has anti-harassment policies and procedures which are communicated to staff through regular training, but has not reviewed the effectiveness of its policies or training in several years.
Comment
Undoubtedly the preventative duty encompassing harassment by third parties is the standout development from the new guidance. Although the new guidance is subject to change in response to consultation feedback, it is likely that employers in the retail and hospitality sector, or employers with workers in customer-facing roles, will need to pay particular attention to the risks posed by third parties, and take steps to mitigate those risks.
But third party contact is not confined to customer relationships. Building a good client relationship in a corporate environment often involves networking dinners and out of hours events, all of which are potential risk areas. While it may be relatively straightforward for an employer to guide its own workers about behaving appropriately at work events in a code of conduct or social events policy, mitigating the risk of third parties outside of an employer’s control misbehaving towards its staff without damaging those relationships is likely to be much more challenging. This new element raises plenty of issues to think about.
While the concepts set out in the updated guidance are helpful, employers will need to consider what the preventative duty means for them in practice, how they can raise awareness of the new duty and upskill their staff, managers and HR to understand what it involves, and how to prepare to comply with it.
Finally, it is worth mentioning that Labour’s New Deal for Working People (published before the General Election) included a commitment to “create and maintain workplaces and working conditions free from harassment, including by third parties.” Whether that means Labour intends to reintroduce employer liability for sexual harassment by third parties, or if the EHRC’s updated guidance effectively meets this commitment, remains to be seen. Labour has also committed to strengthening the new duty to require employers to take ‘all reasonable steps’ to prevent workplace sexual harassment and so we may yet see further change in this area
