UK Employment Law Coffee Break: A new Labour government and a consultation on sexual harassment

A new Labour government: What does this mean for employers? 

Now a new Labour government has been elected, our latest Insight looks at Labour's proposals ahead of the King's speech next Wednesday 17 July. You can also listen to employment partner, Anna Elliott and senior associate, Alice Spicer-Edwards, talking with HR World on the impact of the election for employers. 

Our Workforce Solutions team has also produced a collection of Insights looking at the implications of Labour's proposals for businesses with contingent workforces. 

EHRC consultation on revised guidance on sexual harassment 

The Equality and Human Rights Commission has published a consultation on revising its "technical guidance on sexual harassment and harassment at work" in light of the new duty on employers to "take reasonable steps" to prevent sexual harassment set out in the Worker Protection (Amendment of Equality Act 2010) Act 2023 that comes into force on 26 October 2024. The consultation closes on 6 August 2024.

No employer is exempt, but 'different employers may prevent sexual harassment in different ways' 

The proposed revised guidance states that what is reasonable will vary from employer to employer and will depend on factors such as (but not limited to) the employer's:

• size;
• sector;
• working environment; and
• resources. 

Whether or not an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances of each situation. 

What steps does an employer need to consider? 

The revised guidance provides that an employer should:

• consider the risks of sexual harassment occurring in the course of employment;
• consider what steps it could take to reduce those risks and prevent sexual harassment of workers;
• consider which of those steps it would be reasonable for it to take; and
• implement those reasonable steps. 

Prevention of sexual harassment by third parties in scope 

Revisions to the existing technical guidance to deal with the new preventative duty confirm that sexual harassment of a worker can be committed by another worker, an agent acting on behalf of the employer or a third party. 

The preventative duty includes the prevention of sexual harassment by third parties and an employer must therefore take reasonable steps to prevent such harassment. Employers should consider the risk of workers coming into contact with third parties in different situations, the risk of sexual harassment occurring in those situations and take reasonable steps to prevent such harassment. 

Enforcement 

If an employer breaches this preventative duty, the EHRC has the power to take enforcement action against the employer including powers to:

• investigate;
• issue an unlawful act notice confirming that an employer has breached the Act and requiring the employer to prepare an action plan on how it will remedy any continuing breach and prevent future breaches;
• enter into a formal legally binding agreement with an employer to prevent future unlawful acts; and
• ask the court of an injunction to restrain an employer from committing an unlawful act. 

The proposed revised guidance notes that enforcement powers to take action can be used where the EHRC suspects the preventative duty has not been complied with; they are not dependent upon an incident of sexual harassment taking place. 

Separate from the EHRC's enforcement powers, where an individual brings a successful Employment Tribunal sexual harassment claim, the tribunal will have the power to increase compensation by up to 25%. 

Next steps 

With the new preventative duty coming into force in October, employers should ensure that they are considering now the steps they need to be taking. 

The revised guidance notes that the preventative duty is "anticipatory" and "employers should not wait until an incident of sexual harassment has taken place before they take any action". The duty "requires that employers.. 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". 

As well as the proposed guidelines above, the existing Code of Practice and guidance on sexual harassment published by EHRC provide a useful tool in considering what measures are appropriate in a particular workplace. 

Examples of measures that could be taken include:

• Communicate the organisation's zero-tolerance approach to sexual harassment and top down support.
• Review and update an anti-harassment policy, ensuring that it is communicated to and easily accessible for all workers.
• Encourage the reporting of sexual harassment by providing different methods of doing so; ensure appropriate support is in place for those making a complaint and also those who are subject to a complaint.
• Put in place anti-harassment training for all staff which is regularly updated and delivered. Training should cover the behaviour expected, how to raise a complaint and the standards of behaviour expected. Additional training should also be provided for managers on how to handle a complaint relating to other employees and third parties.
• Monitor the progress of all sexual harassment complaints to ensure they are investigated and resolved; repeat offenders and risk areas should be identified and effective measures put in place to minimise all risks.
• Ensure the anti-harassment policy is effectively implemented, monitored and reviewed. This could include regular staff surveys to ascertain the extent of any problem or potential risk of sexual harassment, both internally and in relation to third parties with whom employees come into contact in the course of their duties.

Aside from the financial impact of any Employment Tribunal claims, employers must also consider the reputational consequences which will flow from an exercise by the EHRC of its enforcement powers. 

Employers should also keep in mind that the new government is proposing further reforms in this area, including making this preventative duty more onerous by extending it to the taking of "all" reasonable steps.