This week has seen some deeply troubling stories of sexual harassment told by ex-employees of Harrods. It is somewhat timely that the Equality and Human Rights Commission has published its updated technical guidance on sexual harassment in the workplace. The guidance has been updated to take account of the new mandatory duty on employers to take reasonable steps to prevent sexual harassment in the workplace which will be in force from 26 October 2024. We covered this preventative duty and the draft updated guidance in detail in our recent blog post.    

Headline points on the preventative duty in the final guidance

• Risk assessments are key - employers are unlikely to be able to comply with the preventative duty unless they have carried out risk assessments. Paragraph 4.10 of the guidance outlines factors to consider when assessing risks.
• There is no definition of what is ‘reasonable’ - it will differ from employer to employer depending on the facts and the circumstances.
• Third-party harassment is not a stand-alone claim under the Equality Act 2010 but the preventative duty does require employers to take reasonable steps to prevent sexual harassment of workers by third parties.
• The preventative duty only applies to sexual harassment claims.
• There is no stand-alone claim for breach of the preventative duty. If an employee is successful in their sexual harassment claim, the tribunal must, when awarding compensation, look to see whether the employer complied with their preventative duty. If that duty was breached then the tribunal can award an uplift in compensation of up to 25%. 
• Aside from the compensation uplift, the EHRC can:
  • investigate breaches of the duty;
  • issue an unlawful act notice;
  • enter into a legally binding agreement with an employer; or 
  • ask the court for an injunction to restrain the employer from committing an unlawful act. 

The preventative duty does not depend on a sexual harassment incident for these enforcement measures to be carried out. Such actions by the EHRC can cause extensive reputational damage. Workers can report a concern to the EHRC, however, they will be advised to raise it with their employer or trade union in the first instance.  

Action points

• Read our previous blog for practical advice on taking reasonable steps to prevent sexual harassment.
• Read the guidance for key content and useful practical examples.
• Read the eight-step guidance issued alongside the updated technical guidance.
• Contact me for advice on updating policies and/or training for employees.
• Sign up to attend our Employment law update on 15 October for further details and guidance on the preventative duty .