Ahead of the new preventative duty on employers taking effect from 26 October 2024, the Equality and Human Rights Commission (EHRC) has updated its technical guidance and put it out, in draft form, for consultation. The consultation will run until 6 August 2024, and we expect the finalised version of the technical guidance to be released in September 2024. Here, we look at what the new preventative duty is and what the draft technical guidance says.
What is sexual harassment?
Sexual harassment is when a person is subjected to unwanted conduct of a sexual nature which has the purpose or effect of either violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. If they are treated less favourably because they submitted to, or rejected that unwanted conduct, that is also sexual harassment.
What obligations do employers currently have?
A claim for sexual harassment can be brought by workers against their employer because employers are vicariously liable for the actions of their workers when acts of harassment are carried out “in the course of employment”, regardless of whether the employer knows about or approves of those acts. An employer will usually try to defend such a claim by arguing that it has taken “all reasonable steps” to prevent the harassment from taking place.
Scope of new preventative duty
The new duty, effective from 26 October 2024, will require employers to take reasonable steps to prevent sexual harassment from occurring in the workplace. In the updated technical guidance, which is now out for consultation, the EHRC explains that the duty includes the prevention of sexual harassment of workers by third parties like self-employed contractors, members of the public, customers, and clients.
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What are “reasonable steps”?
The draft guidance explains that what is reasonable will vary from employer to employer and it will depend on various factors like the employer’s size, the sector it operates in, and the risks present in that workplace.
Examples of steps an employer could take include:
• Have a sexual harassment policy – our documentation team can assist you with a policy.
• Train all staff on sexual harassment and what is considered to be unacceptable behaviour in the workplace, and how to keep themselves safe. Don’t forget that our Face2Face team can carry out training for your staff and managers.
• Assess the risk.
• Culture of transparency: workers should feel able to speak up and raise concerns without fear that they will not be taken seriously.
• Clear procedure: make sure that the organisation has a clear procedure in place so that workers know how they can report concerns and what steps will then be taken.
• Communicate zero-tolerance approach. Speak to our Advice Service who will be able to guide you on the procedure to follow.
• Support: we can provide you with the details of Health Assured, our partner company, who can provide you with an Employee Assistance Programme if you do not already have one.
This is not an exhaustive list, and any measures should be tailored to the specific organisation and regularly reviewed.
What happens if there is a breach of the new preventative duty?
Once in force, a complaint can be made to the EHRC which has the power to take enforcement action against the employer. No allegations of sexual harassment are needed in order to raise this complaint.
If a claim of sexual harassment is brought in the employment tribunal, then the tribunal must consider if and to what extent the employer has complied with the preventative duty. If the employment tribunal finds that the preventative duty has been breached, it may increase the compensation awarded by up to 25%.
