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Governance & ComplianceUnited KingdomEN

EHRC Technical Guidance: Distinguishing Statutory Duties from Advisory Best Practice in Great Britain

This briefing clarifies the legal distinction between mandatory statutory duties and advisory recommendations within the EHRC workplace harassment technical guidance.

October 28, 2026 · 747 words
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Editorial hold — human review pending.

Country: United Kingdom. Research snapshot: 2026-10-20. Source / development date: 2024-09-24.

Unresolved verification flags

The technical guidance was reviewed in September 2024. Check later amendments, territorial scope and commencement. Guidance illustrations are not a fixed statutory checklist.

Resolve these limitations and the article-specific legal checklist before approval. This draft is educational information, not legal advice.

Background and Context

Country: United Kingdom (England, Scotland, and Wales). Development date: 24 September 2024. Research snapshot date: 20 October 2026.

Navigating executive accountability under the Equality Act 2010 requires a precise understanding of the boundaries between binding legal obligations and non-binding good practice. The Equality and Human Rights Commission (EHRC) sets out this distinction clearly in its technical guidance on sexual harassment and harassment at work, providing specific definitions that govern how its guidance should be read by employers, workers, and employment tribunals [source: launch-source-11].

EHRC Drafting Conventions: 'Must', 'Can', and 'Should'

To ensure regulatory clarity, the EHRC guidance defines its operative terminology at the outset: - 'Must': Used exclusively where a person or organisation has a binding legal duty under statutory or common law [source: launch-source-11]. - 'Can': Used where a party possesses an express legal power or statutory discretion, rather than a mandatory duty. - 'Should' or 'Could': Used to designate guidance on good practice, advisory governance steps, or practical examples of implementation.

Executive boards must distinguish between statutory commands and recommended practice to ensure resource allocation is legally sound and avoids conflating advisory suggestions with legal requirements.

The Legal Scope of Binding Duties

Key statutory duties under the Equality Act 2010 include: 1. The General Prohibition of Harassment: Under section 40 and section 26, it is unlawful for an employer to subject workers or job applicants to harassment related to a protected characteristic or harassment of a sexual nature [source: launch-source-11]. 2. The Preventative Duty: Under section 40A(1), employers have an absolute statutory duty to take reasonable steps to prevent sexual harassment of their workers in the course of employment. This is an anticipatory legal duty that covers sexual harassment by colleagues and by third parties such as clients and customers. 3. The Prohibition of Victimisation: Under section 27, employers must not subject individuals to a detriment for carrying out protected acts, such as raising complaints or assisting in investigations.

Crucially, the law does not set out an exhaustive statutory checklist of specific steps an employer must take to satisfy the preventative duty (paragraph 3.28) [source: launch-source-11]. Whether an employer has taken "reasonable steps" is an objective legal test evaluated according to the size, resources, working environment, and risk profile of the specific organisation.

Furthermore, statutory enforcement mechanisms are distinct: - Individuals cannot bring a standalone employment tribunal claim solely for a breach of the preventative duty under section 40A(1), nor can they bring a standalone claim solely for third-party harassment following Unite the Union v Nailard [2018] EWCA Civ 1203. - However, if an employee succeeds in an underlying sexual harassment claim and is awarded compensation, the tribunal must assess compliance with the preventative duty and can uplift compensation by up to 25% under section 124A [source: launch-source-11]. - Independent of private litigation, the EHRC holds regulatory enforcement powers under the Equality Act 2006 to investigate employers (section 20), issue unlawful act notices requiring binding action plans (sections 21 and 22), enter into formal agreements (section 23), or seek court injunctions (section 24).

Advisory Good Practice vs Statutory Duties

The EHRC technical guidance contains numerous practical measures framed as recommendations ('should' or 'could'). These include establishing dedicated anonymous reporting hotlines, deploying regular climate surveys, offering specialized bystander intervention training, and engaging in structured consultations with employee network groups. While an employer is unlikely to demonstrate that it has taken reasonable steps without conducting a risk assessment, specific operational tools remain recommendations rather than standalone legal duties. Illustrative scenarios in the text are hypothetical examples to assist organisations, not prescriptive statutory obligations.

Legal review required

  • Local applicability: Confirm that policies and operations fall within the jurisdiction of England, Scotland, or Wales.
  • Statutory commencement: Monitor the implementation timeline for legislative reforms cited in the guidance as scheduled for April and October 2026.
  • Regulatory powers: Confirm the current scope of EHRC enforcement mechanisms under the Equality Act 2006.
  • Notice: Any uncertain or unsupported legal assertions must be verified prior to executive release. This document provides non-advisory educational analysis and has not received human review.