Guidance on the Preventative Duty

We previously reported on changes to the law on sexual harassment, which will be introduced under the Worker Protection (Amendment of Equality Act 2010) Act 2023.

Last week, the Equality and Human Rights Commission (EHRC) updated its technical guidance on sexual harassment at work, including the employer’s “legal duty to take reasonable steps to prevent sexual harassment of its workers”, the ‘preventative duty‘.

What’s new to sexual harassment guidance?

From 26 October 2024, employers will have to proactively take reasonable steps to prevent harassment of their workers (the Preventative Duty).

Despite the previous government dropping plans to reintroduce employer liability for the sexual harassment of workers by third parties, the EHRC guidance makes it clear that the Preventative Duty requires employers to take reasonable steps to prevent the sexual harassment of workers by third parties.

Suppose an employment tribunal finds that a worker has been sexually harassed and the employer has not complied with the Preventative Duty. In that case, it can increase compensation for discrimination by up to 25 per cent.

Further, where there is evidence that an employer has failed to take reasonable steps to prevent sexual harassment, the EHRC can take enforcement action. Workers can report a concern directly to the EHRC.

How employers should comply with new sexual harassment guidance

In addition to the comprehensive guidance, the EHRC has also updated its eight-step guide on preventing sexual harassment at work. This is a valuable tool for employers needing a high-level overview of steps to comply with the Preventative Duty.

The recommended steps are:

• Develop an effective anti-harassment policy
• Engage your staff
• Assess and take steps to reduce risk in your workplace
• Reporting
• Training
• What to do when a harassment complaint is made
• Dealing with harassment by third parties
• Monitor and evaluate your actions

However, there is no substitute for becoming familiar with the comprehensive guidance, which includes worked examples to assist employers in understanding the bar they are required to meet to comply with the Preventative Duty.

What can we expect in the future?

The new government has announced plans to strengthen the legal duty for employers to take steps to prevent sexual harassment before it starts.

In addition to other related proposals, there is an indication that the draft Employment Rights Bill may contain a duty on employers to take ‘all reasonable steps’ to prevent sexual harassment, which goes beyond the new Preventative Duty.

With the above in mind, as an employer, you are advised to place the prevention of sexual harassment high on their agendas and get ahead of the game in doing all they can to prevent sexual harassment of their workers, including by third parties.

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