This article, written by Setfords Consultant Employment Solicitor Nick Hall, explores the latest guidance from the Equality and Human Rights Commission (EHRC) around sexual harassment in the workplace.
The Equality and Human Rights Commission (“EHRC”) is the country’s independent equality and human rights regulator.
Its role is “to make the country a fairer place by enforcing and upholding the laws that safeguard everyone’s right to fairness, dignity and respect. [It enforces] the Equality Act 2010, which makes it unlawful to discriminate against or harass individuals based on the nine protected characteristics.” (EHRC website).
As part of that role, the EHRC publishes Guidance on the various areas of discrimination law to help employers understand their legal responsibilities to employees and others.
It has long been the case that employers can be liable for sexual and other harassment as well as victimisation carried out by their employees. The EHRC has had for some years specific guidance which deals with sexual harassment, harassment and victimisation in employment under the Equality Act 2010 (“Act”).
However, an additional duty for employers is due to become law on 26 October 2024. Employers will have a positive legal duty to take reasonable steps to prevent sexual harassment of their workers, commonly known as the “preventative duty.”
This new law is an extremely important development in the area of sexual harassment, which HR professionals and employers need to know.
To help with this, the EHRC, after a consultation, has updated its guidance on this area.
The Guidance
The Guidance:
- helps employers to understand their legal responsibilities in relation to harassment and victimisation, the steps they should take to prevent harassment and victimisation at work and what they should do if harassment or victimisation occurs.
- helps employers to understand their positive legal obligations in relation to the preventative duty, the steps they must take to prevent sexual harassment at work and what they should do if harassment occurs.
- helps workers to understand the law and what their employer should do to prevent harassment and victimisation, or to respond to their complaint of harassment or victimisation.
- helps lawyers and other advisers to advise workers and employers about these issues.
- gives employment tribunals and courts clear guidance on the law on harassment and victimisation, the legal scope of the preventative duty and best practice on the steps that employers could take to prevent and deal with harassment and victimisation.
- uses examples to illustrate some of the practical steps employers of different sizes and types can take to eliminate harassment in the workplace.
The Guidance contains an extremely helpful and important Chapter on taking steps to prevent and respond to harassment, to help employers understand how best to meet their responsibilities under the new preventative duty.
It emphasises that employers cannot simply respond to acts of harassment; they have a positive, anticipatory duty to take reasonable steps to prevent the sexual harassment of workers in the course of their employment.
Employers therefore need to anticipate scenarios when their workers may be subject to sexual harassment and take action to prevent it taking place.
Risk factors
Examples of steps employers should take include making an assessment of risks, to identify the risks of harassment taking place and the control measures to minimise the risks. Examples of risk factors include the following:
- Socialising outside of work.
- Lone working and night working.
- Power imbalances.
- Social media contact between workers.
- Customer-facing duties (the preventative duty includes taking steps to prevent sexual harassment by third parties, therefore including by customers/ clients).
What happens if an employer fails in its preventative duty?
If an employer fails in its preventative duty:
1. The EHRC may take enforcement action against the employer.
2. If an individual succeeds in a claim in an employment tribunal for sexual harassment and is awarded compensation, the tribunal must consider whether the employer has complied with the preventative duty. If it considers the preventative duty has been breached, the tribunal may increase compensation by up to 25%.
This is therefore an extremely important area for HR professionals and employers. Reading, digesting and acting on the provisions of this Guidance is therefore a must.
For any further information on this area, or indeed on any areas of employment law, please contact Nick Hall, Consultant Employment Solicitor, at nhall@setfords.com
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