Employers need to review their procedures on sexual harassment - Grace Watson

Significantly, the new preventative duty relates only to sexual harassment. The law relating to other forms of harassment prohibited by the Equality Act 2010 remains unchanged.

The Equality and Human Rights Commission (EHRC) has updated its technical guidance on sexual harassment and harassment at work to advise employers and tribunals about how to comply with the new duty. Currently in draft form, the EHRC closed its consultation on 6 August and will publish its findings in due course.

Current guidance makes clear that employers are expected to be proactive in their compliance with the duty by actively anticipating and risk assessing situations in which their employees could be subject to sexual harassment.

Employers must assess the risk of sexual harassment, determine what control measures would mitigate that risk, then decide if it’s reasonable to implement that measure. What is ‘reasonable’ depends on the organisation’s size and resources. Control measures may include providing regular training on what harassment is and how it can be reported, but there is no definitive list.

Clearly, this guidance places a high bar on employers with large resources. Moreover, I suspect many employers will be unfamiliar with risk assessing situations in the context of sexual harassment.

The EHRC guidance implies that, where a tribunal determines it would have been reasonable for an employer to take a particular step which they have not taken, the employer will have failed in its preventative duty.

In this regard, I believe the draft guidance imposes a more onerous obligation on employers than what is envisaged by the legislation. Notably, the Worker Protection Bill as originally drafted, required employers to take “all” reasonable steps to prevent sexual harassment. Significantly, an amendment passed by the House of Lords removed the word “all” from the draft Bill, meaning an employer is required to take only “reasonable steps”. Arguably, this important distinction isn’t reflected in the EHRC guidance.

Failure to take account of the EHRC guidance can have serious consequences. The EHRC already has power to investigate and take enforcement action against employers not complying with the Equality Act. The new legislation enables the EHRC to take enforcement action against employers not complying with the preventative duty, though in practice EHRC investigations are rare. Only two cases relating to sexual harassment are documented in its latest annual report.

However, employers beware. The Act allows employment tribunals to increase awards of compensation by up to 25 per cent where an employee successfully sues their employer for sexual harassment.

Yet it’s worth noting this; if an employee’s sexual harassment claim fails, the fact that the employer may have nevertheless been in breach of its duty to prevent sexual harassment is irrelevant. Given the relatively small number of claims for sexual harassment heard by the tribunals each year (when compared with the number of UK employers), it will be interesting to see how often employers’ compliance with the preventative duty will be scrutinised.

Looking ahead, the current government’s ‘Plan to Make Work Pay’ includes proposals to strengthen the preventative duty and to introduce liability for third party harassment. Consequently, I would urge employers to consider reviewing their existing rules and procedures to ensure they are fit for purpose.

Grace Watson is a senior associate, Shoosmiths