The Equality and Human Rights Commission (EHRC) has published guidance to help employers navigate the new duty to prevent sexual harassment in the workplace which comes into force on 26 October 2024. The full guidance can be reviewed here.
It is important to note that the definition of sexual harassment has not changed and remains “unwanted conduct of a sexual nature” which “has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment“.[1]
The new duty and what constitutes “reasonable” steps
The new duty is set out in section 40A of the Worker Protection (Amendment of Equality Act 2010) Act 2023 and is anticipatory, meaning that employers are now expected to risk assess their workplace (in the same way as a health and safety risk assessment) to understand what positive changes should be made to prevent employees being sexually harassed in the context of their employment.[2] The duty requires employers to be proactive to prevent sexual harassment from taking place, rather than reacting to it.
The new anticipatory duty under section 40A requires employers to take “reasonable steps to prevent sexual harassment of employees” during their employment from their own staff and from third parties, such as customers and contractors. What constitutes “reasonable” steps will depend on the unique circumstances of each workplace and the individual’s role. There is no specific list of reasonable steps set out in the legislation for employers to implement in practice.
EHRC eight-step approach
The EHRC consulted before finalising its technical guidance on the duty, which was published on 26 September 2024. The guidance aims to help employers understand what is “reasonable” and the action that they should be taking as a result, recommending an eight-step approach:
- Create and update watertight anti-harassment policies that encompass third-party actors, ensuring that these policies interact with their other procedures i.e. those covering disciplinary matters, dress code, and IT and communications.
- Ensure that all staff are aware of the relevant policies and that they are effective. Evaluating the effectiveness of the policies could be carried out, for example, by using centralised records to document complaints (it is now recommended that employers keep records of informal complaints as part of their record-keeping) so that they can be properly analysed, conducting staff surveys to check on how the policies are being implemented and holding lesson-learned sessions once complaints have been resolved.
- Regularly prepare and update risk assessments to identify key risk areas (such as the presence of alcohol, customer-facing duties, lone/night working, out of hours working, power imbalances etc.) and take positive action to prevent such identified risks.
- Ensure that employees know how to report concerns and proactively scan for potential risks or warnings by regularly gathering anonymous employee feedback. There is an emphasis on addressing power imbalances between senior and junior members of staff by, for example, taking steps to address underrepresentation of workers and ensuring that decision-makers represent all employees/groups within the business.
- Monitor whether managers are aware of the procedure to be followed on receipt of a report.
- Regularly conduct anti-harassment training at all business levels.
- Take steps to ensure that the policies, procedures and complaints cover harassment from third parties.
- Monitor and evaluate current policies, ensuring that they are amended/improved where necessary.
EHRC technical guidance
When considering whether an employer took reasonable steps, in addition to factors such as the size of the employer organisation, the industry/sector and the likelihood of contact with third parties, the EHRC guidance also recommends that employers consider:
- the effect of taking a step and whether an alternative would be more effective;
- the time, cost and potential disruption of the step, balanced against the benefit for employees;
- compliance with regulatory standards; and
- whether any steps taken up to that point have been ineffective.
There is an emphasis within the EHRC guidance on employers anticipating scenarios and identifying (insofar as is reasonable) how to prevent them from taking place in practice. With this in mind, we would recommend that employers ensure that risk assessments are taking place at regular intervals and are documented appropriately. We would also suggest that employers add this duty to management meeting agendas to ensure that it is being discussed and reviewed at a senior level.
Enforcement action
Employers should take stock of the EHRC’s guidance and recommendations, given that it has the statutory power to enforce the duty,[3] along with the Employment Tribunal. If the EHRC suspects that an employer has not taken all reasonable steps to prevent just one potential instance of sexual harassment, it can do any or all of the following: investigate employers;[4] issue an unlawful act notice to an employer (confirming that the employer has breached the legislation and requiring the employer to prepare an action plan, documenting how they will remedy any existing breach and future breaches);[5] enter into a binding agreement to prevent future unlawful actions;[6] or ask the court for an injunction/interdict to restrain an employer from committing an unlawful act.[7]
Investigation or enforcement action by the EHRC would likely create waves of reputational damage and potential media scrutiny. Observing the EHRC’s guidance will help to protect employers from negative publicity in the public eye. In addition, if an employer is found to have failed to comply with the duty as part of a sexual harassment claim, the Employment Tribunal may also increase any compensation awarded to a claimant by up to 25%.
By adhering to EHRC’s guidance to prevent sexual harassment, employers will also strengthen staff morale and increase efficiency. A culture where sexual harassment is overlooked makes employees lose confidence in their work, lowers productivity and encourages absenteeism. Taking positive steps to prevent sexual harassment at work, as outlined by the EHRC guidance, will create the respectful working environments needed for businesses and their employees to thrive.
If you have any questions regarding the EHRC guidance, the new legislative duty or require assistance with a sexual harassment matter, please get in touch with your usual Dentons contact.
[1] Section 26(2) Equality Act 2010.
[2] Please note that the current duty covers employees only, not workers.
[3] Section 40A(3) Worker Protection (Amendment of Equality Act 2010) Act 2023.
[4] Section 20 Equality Act 2006.
[5] Sections 21 and 22 Equality Act 2006.
[6] Section 23 Equality Act 2006.
[7] Section 24 Equality Act 2006.
