Back in June, we highlighted that, from October 26, 2024, all employers in the UK will have a mandatory duty to take “reasonable steps” to prevent sexual harassment of their employees in the course of their employment. We explained that we were expecting the Equality and Human Rights Commission (EHRC) to update its existing guidance on sexual harassment to include guidance about the scope of this new duty.

We now have the EHRC’s updated guidance (the “Guidance”). There is not a huge amount of detail on the scope of the duty, but here are three key things employers should be aware of:

• The new duty is anticipatory rather than reactive: Employers will be required to carefully assess the risk of sexual harassment happening in their business and actively take steps to prevent it from happening in the future, including analyzing situations where it has happened before. Employers that take a passive or reactive approach to sexual harassment are likely to find themselves in breach of the new duty.
• “Reasonable” is an objective test and will vary from employer to employer but the Guidance has made clear that:
  
  • Relevant factors will include (for example) the size of the employer, the sector it operates in, the working environment and its resources, the types of third parties employees may come into contact with, level of risk and how effective the step might be when bearing factors like time, cost, and level of disruption in mind. Employers may want to carry out an audit to identify their specific risks and the steps that are likely to be effective to address them. This might include ensuring they have policies and training which is regularly updated.
  • While liability for harassment by third parties was removed at the Bill stage, employers must take reasonable steps to prevent sexual harassment by third parties. Depending on the nature of the employer this might include customers, clients, service users, friends and family of colleagues and/or members of the public.
• The EHRC will have wide enforcement powers: This will include the power to investigate, issue unlawful act notices, enter into legally binding agreements with employers to prevent future unlawful acts and seek injunctions to restrain employers from committing unlawful acts. We will need to wait and see if the EHRC will be given additional resources in order to take enforcement action. However, you should note that:
  
  • The EHRC will be able to exercise these powers if it suspects there may have been a breach of the new preventative duty – it will not need to wait for an incident of sexual harassment to take place or for an employee bringing a claim.
  • Any enforcement action by EHRC for failing to comply with this duty could lead to reputational damage and so employers will want to take steps that are reasonable to reduce the risk of facing such action in the first place.

What’s next?

The EHRC ran a short consultation on the Guidance, which closed on August 6, 2024, and it may issue further updated guidance in light of the responses before the new preventative duty becomes law on October 26, 2024. In the meantime, we recommend that employers start taking steps now to ensure that they are ready to comply from day one. Many businesses will already be taking steps to address sexual harassment, but employers will want to be able to evidence that they have assessed their risk and demonstrate the action they have taken.

Going forward, the new Labour government has indicated that it plans to extend the Act to require employers to take “all” reasonable steps to prevent harassment arising (not just “reasonable” steps).  This was something that it also proposed in the run up to the election. Bearing this in mind, employers may want to ensure they work to this higher standard to set them in good stead ahead of this proposed change. We will keep you posted on developments.