EHRC finalises guidance on how to prevent sexual harassment

From 26 October 2024, employers have a duty to take reasonable steps to prevent sexual harassment of workers in the course of their employment.  The Equality and Human Right Commission (EHRC) has finalised and expanded on its guide for employers, after a short consultation on a draft version earlier this year. Alongside the full guidance, the EHRC has produced a simple 8-step plan for employers.

The guidance isn’t legally binding but employment tribunals are likely to rely on it as a key source when deciding if an employer has met the new legal duty.

What does the guidance say?

These are the key points from the final guidance:

• The new preventative duty is an anticipatory duty. Employers should not wait until sexual harassment happens before acting.
• The duty is designed to transform workplace cultures by requiring employers to take positive and proactive reasonable steps to prevent sexual harassment of their workers. The reference to culture change is new and emphasises how seriously the EHRC expects employers to take this change in law.
• The duty to take reasonable steps to prevent sexual harassment covers harassment from customers, clients and other third parties. In the draft guidance, the EHRC made clear that they would be prepared to take enforcement action against companies that overlooked the risks of third-party harassment. This clarified the reach of the new preventative duty. Employers are not generally legally liable if third parties harass their employees (although the government intends to change this) but the EHRC are sticking to their guns in insisting that the new preventative duty nonetheless extends to third parties. The guidance acknowledges, however, that a worker cannot bring a stand-alone claim against their employer for third party harassment.
• Employers will be expected to carry out risk assessments. In the final guidance, the EHRC has firmed up its stance on this issue, now saying that “an employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment.” The EHRC has also given more examples of factors that may increase the risk of sexual harassment, including work-related travel, socialising, the existence of zero-hours contracts and – interestingly – working from home.
• The guidance emphasises that all employers must take action and no employer is exempt from the sexual harassment preventative duty.
• In deciding whether a step is reasonable to take, employers should consider various factors, including the time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve, whether concerns about sexual harassment have been raised, compliance with any standards set by regulators (for example, the Financial Conduct Authority) and whether steps already taken appear to have been effective.
• The guidance says that, if sexual harassment happens again after steps have been taken, this may indicate that additional or alternative action should be considered – suggesting that employers will be expected to act on lessons learned from any complaint that is upheld (whether by introducing new measures or reminding employees of existing ones).

What does taking reasonable steps to prevent harassment mean in practice?

The guidance now includes two more examples of what compliance might look like, expanding on the earlier draft which focused more on what non-compliance looks like.

The first example involves a construction company where a risk assessment identifies a high risk of sexual harassment. Reasonable steps in this example include separate training for managers and staff (including training on handling complaints and being an active bystander), leadership intervention/engagement, setting up a senior management development programme for women, writing to contractors to confirm that sexual harassment will not be tolerated, implementing a speak up channel, setting up a complaints record, monitoring complaints received/trends, repeating an anonymous staff survey and engaging with the relevant employee resource group.

The second example involves a hospital where sexual harassment by a senior consultant has gone unchallenged because of his position.  The guidance says that reasonable steps to prevent further sexual harassment taking place could include suspending him, considering a referral to the regulator, investigating current allegations, training the manager who has failed to act on concerns, putting in place support for affected staff, reviewing the effectiveness of policies/training, establishing a regular climate survey, logging all incidents and reviewing trends.

What comes across from these examples is the need to take a whole range of operational measures over and above simply having policies in place.

What should employers be doing?

The guidance sets out an extensive range of measures that employers could take to prevent sexual harassment. Most of these recommendations are not new (they come from earlier guidance published in January 2020), but they have taken on a new significance with the law requiring all employers to take preventative steps.

To help simplify things, the EHRC has published an 8-step guide for employers. This says that employers should (in summary):

1. Develop an effective anti-harassment policy

2. Engage staff

3. Assess and take steps to reduce risk in the workplace

4. Set up reporting procedures

5. Roll out training

6. Deal with complaints

7. Address harassment by third parties

8. Monitor and evaluate actions

 For our thoughts on what employers can do to get ready, see our earlier article on the new duty to prevent harassment and our podcast: New duty to prevent sexual harassment: are employers doing enough?. We have a range of guidance and support on offer for employers – please contact us or see here for more details.

What if we don’t comply with the new duty?

The key consequence is the potential for higher compensation to victims of sexual harassment. The preventative duty can’t be enforced by workers directly; it depends on a worker succeeding in some kind of harassment claim that involves sexual harassment. The worker’s compensation can be increased by up to 25% if the employer is found to have breached the preventative duty as well as being liable in the worker’s case. The amount is not subject to any legal cap.

The other consequence is the risk of EHRC enforcement action. The EHRC has the power to conduct investigations and enforce the new preventative duty independently of any incident taking place. With limited resources, the EHRC is likely to target enforcement action carefully. Larger employers and “household names” tend to be at particular risk of attracting EHRC attention.

It’s important to say that complying with the new duty is an ongoing process – not just a one-off exercise that must be completed by 26 October.  So, even if you’ve already taken measures to comply, you’ll need to continue to review and improve on those measures where appropriate. On the other hand, if you’ve not taken action yet, or are concerned that you’ve not done enough to be able to demonstrate compliance, there’s still time to put in place measures and build on them over the next few months.

The new EHRC guidance is available here and the 8-step guide is here.

You can find more details of how we can help here and places are still available on our webinar if you would like to sign up.