UK Employment Law Coffee Break: Updated EHRC guidance on sexual harassment and harassment at work, our recent webinars, and an international outlook

EHRC publishes updated guidance on sexual harassment and harassment at work and addresses new preventative duty

The new statutory duty to take reasonable steps to prevent sexual harassment comes into force on 26 October 2024. The Equality and Human Rights Commission (EHRC) has now published its updated guidance reflecting observations raised during the consultation and setting out helpful and detailed considerations and actions for employers towards compliances. It has also published a short guide for employers on preventing sexual harassment at work.

Although the guidance is not legally binding, it will be relevant in any Employment Tribunal proceedings where harassment is alleged (including a potential uplift in compensation where there is considered to be a breach of the new preventative duty) and any enforcement action by EHRC. 

More detail on what will be 'reasonable'

In line with the draft, the updated guidance confirms that what is reasonable will vary from employer to employer; different employers may prevent sexual harassment in different ways. Whether or not an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances of each situation. A four-step approach is provided for employers to take:

• consider the risks of sexual harassment occurring in the course of employment
• consider what steps can be taken to reduce those risks and prevent sexual harassment of workers
• consider which of those steps it is reasonable to take
• implement those reasonable steps.

However, the updated guidance now expands further on this, stating that "an employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment" (our emphasis) and that when carrying out a risk assessment, employers should consider the risk their workers may be sexually harassed by third parties (as well as worker-on-worker harassment).

The list (non-exhaustive) of factors that may be relevant in deciding whether a step is reasonable has also been expanded and now includes:

• the size and resources of the employer
• the nature of the working environment
• the sector the employer operates in
• the risks present in that workplace
• the nature of any contact with third parties, for example,  type of third party, frequency, environment
• the likely effect of taking a particular step and whether an alternative step could be more effective
• the time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve
• whether concerns have been raised with an employer that sexual harassment has taken place (it would likely be reasonable for the employer to take steps to investigate and ensure it does not happen again)
• compliance with any relevant regulatory standards (for example, standards set by the Financial Conduct Authority or General Medical Council)
• whether steps taken appear to have been effective or ineffective, for example, if a further incident of sexual harassment occurs after steps have taken, this may indicate that additional and/or alternative action should be considered

The guidance emphasises that a step may be reasonable even if it would not have prevented a particular act of sexual harassment and includes two additional scenarios to demonstrate how an employer may approach the new duty in practice. It is clear that putting in place a sexual harassment policy and carrying out appropriate training will only be a part of the compliance picture.  

Steps to prevent harassment

The updated guidance also sets out additional detail around the steps that employers should be considering in determining what steps should be taken to prevent harassment, including sexual harassment, in the workplace. Chapter four of the updated guidance will be essential reading as employers look to comply with the new duty (and their wider discrimination obligations). A few points to note include:

• The risk of sexual harassment in the course of employment should be specifically addressed; it is suggested that existing risk management frameworks traditionally used in the workplace health and safety context could be used in this process (as well as in assessing wider harassment risks). Assessments should identify the risks (a list of example factors is set out, including power imbalances, lone working, the presence of alcohol, social media contact and the workforce demographic), as well as looking at current working policies and procedures, the staff environment and staff communications. Control measures should then be identified which would minimise those risks. The risk assessment should be regularly reviewed and mitigating action taken where new or additional risks are identified. The risk of sexual harassment in the course of employment should be specifically addressed.
• Policies should not conflate different forms of harassment. Employers should have different policies to deal with sexual harassment and harassment related to protected characteristics, or have one policy that clearly distinguishes between the different forms of harassment. Consideration should also be given to preparing separate strategy documents to accompany their anti-harassment policy or policies setting out what measures employers will take to tackle the different forms of harassment.
• The detail on what should be included in a good anti-harassment policy includes confirmation that the law requires employers to take reasonable steps to prevent sexual harassment of workers in the course of their employment. It should also address third-party harassment, including what steps will be taken to prevent it such as warning notices to customers or recorded messages at the beginning of telephone calls.
• To ensure that workers' views are taken into account, anti-harassment policies and other measures to prevent and respond to harassment should be developed in consultation with recognised trade unions or workplace representatives.

Workers encouraged to raise concerns with their employer as a first step

The updated guidance confirms that where an employer does not comply with the preventative duty, the EHRC has power to take enforcement action against the employer, including investigation, the issuing of an unlawful notice, a legally binding agreement to prevent future unlawful acts and an injunction to restrain an employer from committing an unlawful act.

However, while workers can report a concern to the EHRC that the preventative duty has been breached, the guidance directs workers towards "raising their concerns with the employer or trade union" before doing so. Notably, the preventative duty does not depend upon an incident of sexual harassment taking place to be enforceable.

Compensation uplift on amount awarded 'under the Equality Act 2010'

While an individual does not have a standalone right to claim a breach of the preventative duty in the Employment Tribunal, where a worker successfully brings a claim alleging sexual harassment under the existing Equality Act 2010 provisions, the tribunal may order the employer to pay additional compensation to the worker reflecting "the extent to which the employment tribunal considers the employer has not complied with the preventative duty. It must be no more than 25% of the amount of compensation awarded to the worker under the Equality Act 2010".

It is not clear whether this is limited to the "sexual harassment" element of any compensation awarded, or any wider compensation award in respect of other successful discrimination claims, but it would be sensible for the time being to work on the assumption that it is the latter.  

What does this mean for employers?

A priority for employers will now be to ensure that an appropriate risk assessment is undertaken to understand the risk of sexual harassment occurring within the "course of employment" – whether that be in the workplace (which will cover hybrid working scenarios) or at work-related activities, such as conferences, team socials, work parties – and also by third parties.

The whole thrust of the new right is for employers to "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", the duty is "designed to transform workplace cultures by requiring employers to take positive and proactive reasonable steps to prevent sexual harassment of their workers".Where sexual harassment has taken place, the preventative duty means an employer should take action to stop it from happening again. While the preventative duty only applies to sexual harassment – it does not cover harassment related to a protected characteristic (including sex) – it will be important that any risk assessment also includes wider harassment risks within its scope.

Organisations should expect to see greater scrutiny around the steps they are taking to address harassment; the guidance indicates that employers should publish their action plan to workers and the public (for example, on their website).

Employers should consider whether, in line with the guidance, a designated lead should be appointed to take responsibility for the implementation of the plan and compliance with the preventative duty and which will support the creation of an environment where workers, their representatives or any other concerned parties are able to raise concerns directly with an opportunity for a business to deal with them appropriately. As the guidance emphasises, management and senior leaders play a critical role in creating respectful workplaces that are free from harassment: "they should role model respectful behaviour and visibly promote a positive and inclusive workplace culture where harassment is taken seriously and not tolerated".

Our specialist lawyers are supporting employers in preparing for the new duty, including assessing risks, advising on appropriate measures for implementation and training tailored for their organisation for HR, management and staff on the new duty and sexual harassment more widely. If you would like to discuss the new duty and how we can help you in the steps to take towards compliance, please contact your usual Osborne Clarke contact.

Recent webinars

If you missed our webinars in September, you can catch up now. Earlier in September our specialist GPDR for HR team looked at data subject access requests as part of our "Dipping into Data" series – watch here. Last week, employment partner Anna Elliott and senior associate Ed Grey in our employment team looked at the new legal duty to take reasonable steps to prevent sexual harassment (see above), which is available here.

International outlook: mass redundancy procedure in Germany

Our international colleagues regularly produce Insights and host webinars on the practical and legal developments impacting employers in their jurisdictions. How to tackle redundancies in specific jurisdictions is an area we are regularly asked to advise on in light of the different legal rules and the practical considerations when conducting such exercises. Our team in Germany have recently looked at the redundancy procedures which apply in their jurisdiction – read more.