Seven years after the #MeToo movement in 2017 and five years after the UK government consultation on workplace sexual harassment in 2019, our harassment laws are changing. One of the final pieces of legislation introduced by the last Government will come into force on 26 October 2024: the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act). The Act, which was hotly debated through Parliament, introduces a mandatory duty on employers to take reasonable steps to prevent sexual harassment in the workplace. When the new Act was passed, updated guidance from the Equalities and Human Rights Commission (EHRC) was promised. This draft guidance was duly published in July 2024 and a consultation period was initiated. The consultation has now closed but the draft guidance is worth unpacking further. 

Headline: Employers will need to anticipate potential sexual harassment in the workplace and introduce measures to reduce those risks

Overview of the preventative duty

Under the current provisions of the Equality Act 2010, sexual harassment is prohibited within the workplace. Employers are liable for any harassment committed by their employees during their employment. However, if they can demonstrate that they took all reasonable steps to prevent this happening, this will serve as a defence to any harassment claim. 

This new Act goes one step further: it places an anticipatory duty on employers to stop sexual harassment from happening in the first place. An employer must take reasonable steps – note it’s not all reasonable steps – to prevent such harassment from happening. If an employee successfully brings a claim for sexual harassment, the tribunal will then look to see whether the employer has met their preventative duty and if they have not, the compensation payable can be uplifted by up to 25%. Given that injury to feelings awards in discrimination are uncapped, this could be a sizeable amount. It's important to note, however, that a breach of this duty is not a stand-alone claim. Tribunals will only consider a breach of duty once a successful claim for sexual harassment has been made.  

What do employers need to know about the draft EHRC guidance? 

The draft guidance from the EHRC (subject to change post-consultation) offers the following headline points and questions that employers should ask themselves:

• Reasonable steps will take account of an employer’s size, the sector it operates in and its resources. 
• Employers should carry out risk assessments to see where sexual harassment is most likely to occur – are there teams known to have a culture that accepts those behaviours? Are there teams where there is a majority of one gender and only one or two individuals of the opposite sex? 
• Do all employees attend regular training so that they are given an understanding of behaviours that are and are not acceptable? For example, do all staff understand that saying conversations are ‘banter’ doesn’t absolve them of liability? Do all staff understand what a zero-tolerance approach to harassment means in practice?
•  Are staff encouraged to report sexual harassment secure in the knowledge that they will be treated with dignity and respect?

Third-party harassment 

The EHRC draft guidance contains references to third-party harassment which are a little confusing, if not surprising! The Act in its original drafting re-enacted the provision in the Equality Act 2010 whereby employers could be held liable for third-party harassment of their employees. However, following bitter battles in the Houses of Commons and Lords, the re-introduction of third-party harassment was removed. 

Despite this, the EHRC’s updated draft guidance clearly expects employers to take reasonable steps to prevent sexual harassment by third parties such as customers, clients, tenants, contractors, etc. However, it’s still not clear whether a failure to prevent third-party harassment would be relevant to the uplift in compensation. The compensation awarded follows a breach in the Equality Act 2010.  As third-party harassment is not in the Equality Act 2010, a tribunal may not have the power to take this into consideration when awarding compensation. We hope to have clarification on this when the final guidance is published. That said, even without a compensatory uplift, it is worth noting that the EHRC’s powers of enforcement may result in an investigation and potential reputational damage should an employer fail to address the risk of third-party harassment. Considering this and the ambiguity as to the compensation uplift, we would advise that measures to prevent sexual harassment within the workplace extend to preventing such behaviour by third parties.

This will prevent a significant challenge and risk to employers in most sectors where their staff regularly come into contact, as part of their work, with people who are not work colleagues.  In the housing sector, these would be employees such as neighbourhood officers, housing scheme managers, anti-social behaviour officers and community support workers etc. This is mirrored in other sectors such as health and social care, education and local government. In each of these sectors, employers may have considerable exposure to third parties. 

Finally, it is worth noting that the new Labour government made it clear in its electioneering documentation that it intended to re-introduce third-party harassment into the Equality Act 2010.  We have no time frame for this as it wasn't mentioned during the King's Speech last month. However, taking steps now as we advise above, will mean that employers are ready for this change as and when it is introduced. (For an update on the Government's proposals, please listen to our latest podcast).

What should employers do now?

Now the consultation is closed, we await the final form of the guidance which will be published in due course. In the meantime:

• Check your handbooks and current sexual harassment policies – are they up to date with these new provisions coming into force? Do they consider third-party harassment?
• Make sure these policies are accessible to all – a previous case suggested having a link to them on staff payslips to ensure accessibility.
• Review the risk prevention steps underlying your policies – are they fit for purpose? In particular:
  • Update your training and check training records so that all employees have undergone training within the last one to two years.
  • Where your staff come into contact with customers/clients/third parties – have you provided information to those parties that you have a zero-tolerance approach to sexual harassment either through clear signs, contractual arrangements or mutual policies? The draft guidance provides a very good example of how a small employer with limited financial resources could achieve that and it includes reference to notices in public areas, emails to third parties and encouragement of staff to report any harassment they encounter. 
  • Ensure you have carried out risk assessments not just for other employees but for third parties as well.
  • Include guidance and training for staff as to how to act should a third party sexually harass them.
  • Reiterate to staff that all complaints will be taken seriously and steps made to reduce contact with those third parties where sexual harassment has occurred.

For help with training, and policy documentation or any help with auditing your provisions to check that you will comply with the new preventative duty, please contact me.