The EHRC has launched a consultation on proposed amendments to its own guidance on preventing sexual harassment in the workplace. These amendments are within a new section of guidance which deal with changes to the law under the Worker Protection (Amendment of Equality Act 2010) Act 2023.
As Elizabeth McGlone has already explained, this Act introduces a new legal obligation on employers to take reasonable steps to protect their staff from sexual harassment. If an employer breaches this duty then the EHRC will have the power to take enforcement action. In addition, the Employment Tribunal will have the power to increase compensation in sexual harassment cases by up to 25%.
This guidance includes significant reference to third party harassment. The extension of liability for acts of harassment by third parties was removed from the Equality Act when it passed through the House of Lords. The EHRC guidance indicates that this new duty will also apply to actions in respect of both employees and third parties.
The guidance states that ‘if an employer does not take reasonable steps to prevent sexual harassment of their workers by third parties, the preventative duty will be breached.’‘ This is all well and good but as the law presently stands, an employer does not have a legal remedy under the Act in respect of a claim for third party harassment. Therefore, the EHRC can use it enforcement powers to act against an employer that is not protecting its staff from sexual harassment by third parties, but there is no scope in law to bring the claim.
Therefore the question arises, how does the EHRC come to know of any persistent breaches of the preventative duty in respect of third party sexual harassment? Publicly known claims and notification to EHRC of a claim are a way in which they intervene and implement enforcement. If such claims cannot be brought, then the onus is on a worker, who is not bringing a claim, to escalate third party sexual harassment to EHRC. Or, it is down to an employer to draw the issue to the attention of the EHRC, unlikely as this puts them in an uncomfortable position and at risk of enforcement action.
This blog was written by Elizabeth McGlone, Partner at didlaw
