The Equality and Human Rights Commission (“EHRC”) has launched a consultation on its updated guidance on sexual harassment at work. This comes ahead of upcoming changes to the law, which will place a new positive duty on employers to prevent sexual harassment in the workplace from 26 October 2024.
Both an individual perpetrator and an employer can be liable for a sexual harassment claim brought in an Employment Tribunal. An employer can however avoid liability by relying on the defence that it took “all reasonable steps” to prevent the sexual harassment. Under the current law, this is simply a defence to a sexual harassment claim, and there is no legal obligation on the employer to actively prevent sexual harassment.
However, this will change on 26 October 2024 when the new Worker Protection (Amendment of Equality Act 2010) Act 2023 (the “Act”) comes into force. Employers will then be placed under a legal obligation to take “reasonable steps” to protect their workers from sexual harassment. If an employer breaches this new preventative duty, the EHRC can take enforcement action against them and Employment Tribunals can increase any compensation for sexual harassment by up to 25%.
To help employers understand this change and the actions they can take to prevent and respond to sexual harassment, the EHRC has updated its technical guidance on sexual harassment at work and is now consulting to make sure that the guidance is clear and helpful. Interestingly, there appears to be a disparity between the Act and the guidance in respect of third party harassment. Although it was originally proposed that the Act would also introduce a duty for employers to prevent sexual harassment of staff by third parties, this was eventually scrapped, meaning that employers will not be liable for third party harassment. However, the guidance states that the new preventative duty also applies to the actions of third parties, suggesting that the EHRC could take enforcement action if employers fail to protect workers from third party harassment. It will therefore be interesting to see whether this changes as a result of the consultation.
The consultation closes on 6 August 2024 and can be accessed here.
Laura Brown comments: “Employers should review the updated guidance and provide any feedback before the consultation closes. They should also take steps to prepare for the new preventative duty before October; this could include assessing the risk of staff being exposed to sexual harassment, implementing or updating anti-harassment policies, and providing training to staff and managers and refreshing this regularly.”
If you have any questions regarding the upcoming changes, or need any advice on preventing sexual harassment in the workplace, please contact a member of the team here.
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