The Equality and Human Rights Commission (EHRC) has launched a consultation on proposed amendments to its guidance on preventing workplace sexual harassment.

The amendments take the form of a new section of guidance, dealing with the changes in law under the Worker Protection (Amendment of Equality Act 2010) Act 2023, which comes into force on 26th October 2024. The Act introduces a new positive legal obligation on employers to take reasonable steps to protect their workers from sexual harassment. If an employer breaches the preventative duty, EHRC will have the power to take enforcement action against the employer. Employment tribunals will also have the power to increase compensation for sexual harassment by up to 25%.

The most interesting point is the guidance’s inclusion of significant reference to third party harassment. The extension of liability for harassment to acts of third parties was removed from the original Act when it made its way through the House of Lords. However, the EHRC guidance indicates that the new preventative duty will apply to actions in relation to both employees and third parties. It specifically states that “the preventative duty includes prevention of sexual harassment by third parties. Therefore, if an employer does not take reasonable steps to prevent sexual harassment of their workers by third parties, the preventative duty will be breached”.

The multiple references to third party harassment in the guidance indicate that EHRC will use its enforcement powers if it finds that an employer is failing to protect its employees from sexual harassment by third parties. But any employee who was actually harassed by a third party would not, if the Act is enacted in its current form, easily have a free-standing tribunal claim for sexual harassment themselves.

The consultation closes on 6th August 2024.