Equality and Human Rights Commission - Amended guidance on sexual harassment at work

As you will be aware, on the 26th October the new Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force. This Act introduces a new positive legal obligation on employers to take reasonable steps to protect their workers from sexual harassment. In the original wording of the Act, the obligations on employers were much more onerous, with the requirement to take all reasonable steps to prevent sexual harassment in the workplace, and also to take preventative action against third party harassment. The Act was significantly watered down during its passage through Parliament, so that the third party harassment provisions were removed, along with the word “all” – meaning employers just have to take reasonable steps.

The proposed amendments to the EHRC’s guidance which is currently being consulted on, sets out clearly what the EHRC’s remit will be, and when they will take enforcement action:

3.19. The preventative duty is an anticipatory duty. Employers should not wait until an incident of sexual harassment has taken place before they take any action. The duty requires that employers should anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place. If sexual harassment has taken place, the preventative duty means an employer should take action to stop sexual harassment from happening again. However, if an employer fails to take reasonable steps to comply with the preventative duty, there are consequences.

3.20. Firstly we (the Equality and Human Rights Commission) have the power to take enforcement action against the employer (s.40A(3)).

3.21. Secondly, if an individual succeeds in a claim for sexual harassment and is awarded compensation, an employment tribunal must consider whether the employer has complied with the preventative duty. If it considers the preventative duty has been breached, an employment tribunal can increase compensation by up to 25% (s.124A). However, an individual cannot bring a claim for a breach of the preventative duty alone.  

Third party harassment

What is slightly surprising is that as part of the amendment to the guidance, the EHRC references throughout that “the preventative duty includes prevention of sexual harassment by third parties. Therefore, if an employer does not take reasonable steps to prevent sexual harassment of their workers by third parties, the preventative duty will be breached.”

The EHRC then provide a scenario where they would take enforcement action, which is as follows:

Example:

An employer is updating its anti-harassment policies and planning training for all staff. It is a large distribution centre with most staff working in a warehouse environment. It is not open to the public, but customers can order products and attend the warehouse to pick them up from a customer collection point.

The employer carries out a risk assessment to assess the risk of its workers being exposed to sexual harassment.  It considers what steps it can take to minimise those risks and prevent sexual harassment from taking place and consults with employee representatives about the action it proposes to take. The employer implements a variety of measures including:

• updates to its policies and procedures in relation to sexual harassment to clarify the law, expected behaviours and complaints mechanisms

• training with managers and staff to raise awareness of rights related to sexual harassment and the employer’s policies

• specific training for managers to support them in dealing with complaints

• a process for reviewing the effectiveness of the updated policies and training

• a timetable for refresher training for management and staff

However, the employer fails to consider the risk its workers could be sexually harassed by customers attending the premises to collect orders, despite an incident of such harassment occurring only six months ago.

The employer has failed to consider if there are any reasonable steps it can take to prevent the sexual harassment of workers by third parties.  It has therefore failed to comply with the preventative duty.

We could take enforcement action against the employer if they fail to comply with the preventative duty (read paragraphs 3.37 – 3.39 below for further information).

It is therefore clear that according to the guidance in its current form, the EHRC will use its enforcement powers if it finds that an employer is failing to protect it’s employees from sexual harassment by third parties. However, an employee would not have direct protection against harassment by third parties as this wasn’t included in the final Worker Protection (Amendment of Equality Act 2010) Act 2023.

What do reasonable steps look like?

The EHRC in their consultation state that when considering if employers have complied with their preventative duty they will consider:

• The employers size,

• The sector they operate in,

• The working environment,

• It’s resources,

• The risks present in the workplace,

• The types of third parties workers may have contact with,

• The likelihood of workers coming into contact with such third parties.

What enforcement action can the EHRC take?

According to the draft updated guidance, the EHRC can:

• Investigate an employer;

• Issue an unlawful act notice if the employer is or has been subject of an investigation, confirming if the EHRC have found an employer has breached the Act and requiring the employer to prepare an action plan setting out how it will remedy any continuing breach and prevent any future breach.

• Enter into a formal, legally binding agreement with an employer to prevent future unlawful acts.

• Ask the court for an injunction to refrain an employer from committing an unlawful act.

It is interesting that the EHRC state that they can use their enforcement powers if they “suspect” the preventative duty has not been complied with. “The preventative duty does not depend upon an incident or sexual harassment taking pace to be enforceable.” It is clear that the EHRC see this preventative duty as anticipatory.

Do the amendments to the guidance incorporate Labour’s promise to strengthen the legal duty for employers “to take “all” reasonable steps to stop sexual harassment before it starts”?

There isn’t any reference in the updated guidance to this new more stringent approach which Labour indicated they would implement. However, the references to harassment by third parties may be as a result of Labour planning to implement the third party and “all reasonable steps” elements, which were not included in the final version of the Worker Protection (Amendment of Equality Act 2010) Act 2023. We shall need to see if / when any changes to the legislation will be implemented and if this will mean the guidance is updated again. Alternatively, this may be the EHRC providing their guidance on what they think employers should have in place, and then the Tribunals can make a decision about whether the employers actions were sufficient.