Updated guidance on sexual harassment ahead of new legislation coming into force

The Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force on 26 October 2024, laying down that employers have a positive legal duty to take reasonable steps to prevent sexual harassment of their workers.

Earlier this year, the Equality and Human Rights Commission (EHRC) consulted on a revised version of its 2020 technical guidance covering these new responsibilities.

Now, the Commission has published that updated guidance to help employers to understand their legal responsibilities in relation to harassment and victimisation, the steps they must take to prevent sexual harassment at work and what they should do if harassment occurs.

The guidance provides help for workers and lawyers and 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.

The guide:

•            sets out, with examples, a definition of harassment (with a note on how this relates to a protected characteristic) and unwanted conduct

•            examines the meaning of victimisation

•            considers obligations and liabilities under the Act

•            emphasises that employers can and must take action to change workplace behaviours and eradicate harassment in the workplace.

It goes into detail on the preventative duty and on complicated areas such as third-party harassment and employer liability, harassment by a colleague outside of work, indirect discrimination and harassment of former workers.

The Commission makes clear that, if an employer does not comply with the preventative duty, it has the power to take enforcement action and it gives details of potential increases in compensation at an employment tribunal for sexual harassment.

The EHRC is asking for further feedback on the revised guidance which includes a link where users are invited to complete a short survey.

Tips for employers

Given that they must be proactive in assessing risk, identifying action and regularly reviewing their processes, employers are advised to:

•            develop and widely communicate a robust anti-harassment policy, which includes third-party sexual harassment

•            carry out regular risk assessments to identify where sexual harassment may occur and the steps that will be taken to prevent it

•            be aware of what is happening in the workplace and any warning signs by engaging with staff through personal meetings, surveys and exit interviews

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