UK: EHRC publishes final version of guidance on new duty to prevent sexual harassment in force from 26 October 2024

From 26 October 2024, employers will be subject to a new duty to take reasonable steps to prevent their workers suffering sexual harassment in the workplace (from both colleagues and third parties).  Failure to comply with the duty will lead to a potential uplift of up to 25% in compensation awarded for tribunal claims, expose regulated employers to increased regulatory scrutiny, and potentially trigger investigation and enforcement action by the Equality and Human Rights Commission.  Claimants in tribunal claims are likely to seek disclosure of employers' reasons for taking or not taking certain steps, as well as prior incidents of harassment.  The risk of damage to reputation is clear. 

Notwithstanding the impending deadline, the final version of the EHRC's revised Technical Guidance (first published in 2020 and updated to cover the new duty) was only published at the end of last week - click here.  The new duty requires employers to take steps above and beyond those commonly taken now to mitigate the risk of sexual harassment, including to prevent harassment by third parties. The final version of the EHRC Guidance emphasises that an employer is unlikely to be able to comply with the preventative duty unless they carry out a formal risk assessment, and sets out in detail factors that should form part of the risk assessment (such as reviewing workplace structure and culture, the use of non-disclosure agreements, and the effectiveness of policies, reporting mechanisms and training).   Consultation with unions or employees, as well as continuing evaluation and improvement, will also be key.  The risk assessment should then inform the creation of a tangible action plan with target deadlines for appropriate mitigating steps to be taken as soon as possible.

A review now will be particularly important for those employers whose measures have to date been focussed purely on steps to prevent harassment by fellow workers.  Almost all employers will have employees whose roles involve contact with certain types of third party, whether that be customers, suppliers or even just family and friends of colleagues at work-related social events.  Policies and staff and manager training will need specifically to address sexual harassment by third parties, and employers will need to consider how best to communicate to third parties their 'zero tolerance' policy and a protocol for handling complaints.

The need to take action now is amplified by statements from the Labour government that it intends to strengthen the new duty, to require "all reasonable steps" to be taken.  This change could be made within months.

Please do get in touch with your usual HSF contact if you would like to discuss these issues further or would like assistance with implementing a compliance programme.  We have also prepared a short briefing setting out the key action points, available to clients;  please contact us if you would like a copy.