Sexual harassment: EHRC guidance on new statutory duty

On 26 October 2024, a new statutory duty will come into force, requiring employers to take reasonable steps to prevent sexual harassment of their workers. This proactive duty marks a significant shift, as it emphasises prevention over reaction. The EHRC has now released its long-awaited updated Guidance, following a consultation that took place in July and August.

What is the new sexual harassment duty?

As a reminder, sexual harassment is unwanted conduct of a sexual nature that has the purpose of effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The new duty is a positive legal duty on employers to take reasonable steps to prevent such harassment of its workers in the course of their employment, including from third parties like clients and customers. This is known as a ‘preventative duty’, so employers should not wait until a complaint of sexual harassment has been raised by a worker before they take any action. If sexual harassment has already taken place, the preventative duty requires employers to take action to stop this from happening again.

The preventative duty only applies to sexual harassment (not harassment related to sex).

Employees cannot bring claims based only on an employer’s breach of the new duty, although the Equality and Human Rights Commission can take action to enforce the duty. However, if an employment tribunal finds that sexual harassment has occurred, it will consider whether the employer complied with the duty and if the employer has failed to do so, this can result in increased compensation by up to 25%.

How can my organisation take reasonable steps to prevent sexual harassment?

A good starting point is following the EHRC’s 8-step guide to preventing sexual harassment at work:

1. Develop an effective anti-harassment policy.
2. Engage your staff.
3. Assess and take steps to reduce risk in your workplace.
4. Provide multiple reporting channels.
5. Provide training.
6. Respond appropriately to harassment complaints.
7. Address harassment by third parties.
8. Monitor and evaluate your actions.

What is reasonable will vary from employer to employer, but action must be taken and no employer is exempt.

In considering whether a step is reasonable, the employer’s size and resources, nature of working environment, and nature of any contact with third parties will all be relevant. A tribunal or court may find that it would have been reasonable for an employer to take a certain step, even if that step might not have prevented the act of harassment.

An employer is unlikely to be able to satisfy its preventative duty without carrying out a risk assessment.

Risk assessments

Because each employer’s situation is different, an employer should:

• consider the risks of sexual harassment occurring in the course of employment;
• consider what steps it could take to reduce those risks and prevent any sexual harassment;
• consider which of those steps would be reasonable for it to take; and
• implement those reasonable steps.

Risks an organisation may see in the risk assessment include (but are not limited to):

• power imbalances;
• job insecurity (for example, there are zero hours contract staff);
• lone working and night working;
• alcohol presence;
• customer-facing roles;
• lack of diversity especially at a senior level;
• socialising outside work; and
• social media contact between colleagues.

One example the EHRC provides in its Guidance is a hypothetical firm in the construction industry, with only male managers, a male-dominated workforce, and a recent anonymous staff survey revealing that female workers fear raising concerns about sexual harassment. The workers of this firm regularly attend client sites alone, and there is a culture of crude banter at some sites. Such an employer will need to take many actions as there is a high risk of sexual harassment in the business. Some of the actions it could take, according to the EHRC, include:

• Setting up training aimed at managers to ensure they understand how serious sexual harassment is, the need to document reports of harassment, and to take appropriate action.
• Identifying senior leaders to engage with the firm’s women’s network to discuss these issues.
• Setting up a programme to encourage and support women to move into senior positions at the firm.
• Sending out formal letters to all clients to state the firm’s strong stance against sexual harassment.
• Setting up anonymous reporting channels.
• Running refresher training for all staff, with particular emphasis on inclusion, respectful behaviour and the importance of staff reporting any sexual harassment they witness.
• Instructing managers to discuss any initial client site visits with female staff to establish if they are comfortable attending alone or would prefer to attend with a colleague.
• Setting up anonymous reporting channels for sexual harassment.

What are the consequences of failing to comply with the preventative duty?

As well as the potential uplift of 25% to compensation in an employment tribunal, there is the EHRC’s power to take enforcement action against an employer. These powers include:

• investigating an employer;
• issuing an unlawful act notice confirming that the EHRC has found the employer has breached the duty and requiring the employer to prepare an action plan setting out how it will remedy any continuing breach and prevent further breaches;
• entering into a legally binding agreement with an employer to prevent future breaches; and
• asking the court for an injunction to restrain an employer from committing a breach.

Remember, the preventative duty does not depend on an incident of sexual harassment having taken place. The EHRC can take enforcement action without an incident of sexual harassment – it is sufficient that they suspect the preventative duty has not / is not being complied with.

What else can I do as an employer?

• Review your policies. Anti-harassment policies need to be robust, communicated to all staff, and address third party harassment as well as harassment by colleagues. As part of your review, keep in mind feedback received from staff.
• Provide training on types of harassment to all staff. In industries where third party harassment is more likely, training should be provided on how to address this.
• Provide multiple reporting channels.
• Carry out risk assessments as these are crucial in identifying potential harassment risks and implementing preventative measures.
• Understand that managers and senior leaders play a critical role in modelling appropriate behaviour and promoting a positive workplace culture.

Conclusion

The overall theme in this new duty is that employers must be proactive. This comes in the form of risk assessments, review of processes, and positively preventing sexual harassment by implementing different practices and procedures. Employers must be vigilant and aware of what is happening; incidents or risks cannot be swept under the carpet. There is no one-size fits all approach so actions depend on the type of employer, industry, size, diversity of workforce and common practices.

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We understand this new duty may seem like a daunting process. For information on how we can support you with preparing for this, please contact a member of our Employment team or complete a contact form below.