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Final EHRC guidance on preventing sexual harassment at work

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From 26 October 2024, employers will be under a duty to take reasonable steps to prevent sexual harassment in the workplace (the preventative duty). Ahead of this, the Equality and Human Rights Commission (EHRC) has finalised its updated Sexual harassment and harassment at work: technical guidance (the guidance) to include new guidance on the preventative duty. 

Although the guidance is not legally binding, it will be taken into account by employment tribunals when deciding if an employer has breached the new preventative duty and whether to award an uplift to any compensation. Employers are therefore strongly advised to take its recommendations on board. In this blog, we outline key points from the guidance. Relevant paragraph numbers from the guidance are listed below for ease of reference.

The preventative duty

The preventative duty is an anticipatory one which, in the words of the EHRC, is “designed to transform workplace cultures by requiring employers to take positive and proactive reasonable steps to prevent sexual harassment of their workers”. Employers should not wait for an incident of sexual harassment to occur, but should instead anticipate risks of it happening and take action to mitigate them. The duty will apply to all employers irrespective of size, although different employers may take different steps to prevent sexual harassment. More information on the preventative duty is at paragraphs 3.16 to 3.22.

EHRC guidance

Although EHRC guidance on sexual harassment and harassment at work has been in place since 2020 (which we wrote about here), it has now been updated to include specific guidance on the preventative duty, particularly in Chapters 3 and 4. For anyone responsible for implementing this duty in the workplace, it is definitely worth a read.

Alongside its guidance, the EHRC has published an Employer 8-step guide: preventing sexual harassment at work which illustrates the types of preventative action employers might take, including:

  • Step 1: develop an effective anti-harassment policy
  • Step 2: engage staff
  • Step 3: assess and take steps to reduce risks
  • Step 4: set up a reporting system
  • Step 5: training
  • Step 6: handling complaints
  • Step 7: deal with third party harassment
  • Step 8: monitor and evaluate actions

We highlight key considerations in respect of these below.

Policies

The EHRC guidance warns employers not to “conflate” different forms of harassment in their policies. Employers should either have separate policies dealing with sexual harassment and harassment related to protected characteristics, or if there is a single policy, it should distinguish between the different types of harassment. The guidance also advises that separate strategy documents should be used to tackle the different forms of harassment.

See paragraphs 4.16 to 4.32 for more information on what an effective policy should cover (particularly paragraph 4.18).

Engaging staff

There are a number of elements to this:

  • Consultation: the EHRC advises (at paragraph 17) that workers’ views are sought when developing anti-harassment policies and when establishing measures to prevent and respond to harassment. This could be via consultation with a recognised trade union or worker representatives, or if none, directly with staff, for example via surveys.
  • Training: all staff should be trained on what sexual harassment in the workplace looks like, what to do if they experience or witness it, and the consequences of breaching anti-harassment policies. Training should also make clear to staff how they can report sexual harassment. See paragraphs 37 to 4.41 or please get in touch if we can help provide training to your staff and management teams on these issues.
  • Detecting harassment: employers should give workers every opportunity to raise issues with them. The guidance recommends conducting one-to-ones, running staff surveys, holding exit interviews, having open door policies and introducing a telephone reporting system to help detect potential issues and understand whether steps you are taking are working (paragraphs 33 to 4.36).

The importance of conducting a risk assessment

The EHRC is unequivocal that “an employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment” (paragraph 3.31). This is therefore an essential step for all employers to carry out.

In a risk assessment, employers should identify any risks that apply to their particular working environment and practices and identify how these can be mitigated, as well as prepare an action plan setting out the preventative steps they will take. The EHRC encourages employers to consider publishing their action plan to workers and the public and appointing a delegated lead to take responsibility for its implementation. Paragraphs 4.10 to 4.15 of the guidance set out a non-exhaustive list of factors for employers to consider in any risk assessment. 

We wrote recently about the benefit of adopting a risk management approach to preventing sexual harassment, akin to that used when assessing health and safety risks. Our recent blog Sexual harassment: a safeguarding perspective also details risk factors we have identified from our work on safeguarding vulnerable children and adults which will be relevant when seeking to protect workers from sexual harassment.

What are ‘reasonable’ steps?

The test as to whether a step is ‘reasonable’ is an objective one, and will vary from employer to employer depending on the facts and circumstances of each situation.

The EHRC guidance at paragraphs 3.27 to 3.35 includes a non-exhaustive list of factors that may be relevant when deciding if a step is reasonable, including the size and resources of the employer, the sector the employer operates in, and the nature of the working environment. It is also recommended that employers read the various examples set out in Chapter 3 of the guidance, since they give a good indication of the types of action the EHRC considers employers should take in order to comply with the preventative duty.

Third party harassment

Third party harassment is harassment of a worker by someone who does not work for and is not an agent of the same employer. 

Although there were proposals to make third party harassment unlawful under the Equality Act 2010, this did not happen, and employees cannot bring a standalone claim against their employer for third party harassment. Notwithstanding this, the EHRC is clear that the preventative duty includes a duty to prevent sexual harassment by third parties, and as such employers are required to take reasonable steps to prevent third party harassment (see paragraph 3.85, as well as the section on reasonable steps, above).

As part of the preventative duty, employers should therefore:

  • Address third party harassment in their anti-harassment policy, making it clear it will not be tolerated and encouraging workers to report it.
  • Consider the risk of third party harassment against their workers, for example, the nature and frequency of any contact with third parties.
  • Take reasonable steps to prevent third party harassment. The examples in the guidance include suggestions of potential steps, including, communicating to third parties that there is a zero-tolerance approach to sexual harassment, encouraging staff reporting, and developing a protocol for how third party harassment might be dealt with.

The EHRC takes an expansive view of who might count as a third party, including customers, clients, contractors, students, delegates at a conference and members of the public. To be on the safe side, employers should do the same.

Monitoring and evaluation

The preventative duty is an ongoing one, meaning compliance is not static. The EHRC states that risk assessments should “not be a one-off exercise” and employers should regularly evaluate the effectiveness of steps they have put in place, as well as review whether circumstances have changed which might mean there are further reasonable steps to take.

Evaluations could include reviewing data on complaints and seeking input from staff on whether any changes are needed. See paragraphs 4.29 to 4.32 for more information.

In the event a complaint of sexual harassment is made, employers should consider holding ‘lessons learned’ sessions to determine whether additional steps need to be taken to prevent a further incidence of sexual harassment.

Consequences for breach

While an employee cannot bring a standalone claim for breach of the preventative duty, if an employee is successful in a claim for sexual harassment an employment tribunal can increase compensation by up to 25 per cent if it finds the employer has not complied with the duty. The uplift could apply to all discrimination compensation awarded, not just compensation for sexual harassment. See paragraphs 3.40 to 3.43 for examples.

In addition, the EHRC has the power to take enforcement action against employers (see paragraphs 3.36 to 3.39), which could include investigating the employer, issuing an unlawful act notice or entering into a binding agreement with an employer/applying for an injunction to prevent future breaches. Workers can also report a concern that the preventative duty has been breached to the EHRC directly.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, October 2024

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About the authors

Amy Wren lawyer photo

Amy Wren

Senior Counsel

Amy is a Senior Counsel and Knowledge Lawyer in the employment team, providing expert technical legal support to the team and leading its know-how function. Given the fast-changing nature of employment law, Amy ensures the team is at the forefront of all legal changes and can provide the best possible advice to our clients.

Amy is a Senior Counsel and Knowledge Lawyer in the employment team, providing expert technical legal support to the team and leading its know-how function. Given the fast-changing nature of employment law, Amy ensures the team is at the forefront of all legal changes and can provide the best possible advice to our clients.

Email Amy +44 (0)20 3375 7627
Louisa Steele lawyer photo

Louisa Steele

Senior Associate

As a member of the Employment team at Farrer & Co, Louisa advises clients on contentious and non-contentious employment issues.

As a member of the Employment team at Farrer & Co, Louisa advises clients on contentious and non-contentious employment issues.

Email Louisa +44 (0)20 3375 7413

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