The Equality and Human Rights Commission (EHRC) has now published its updated technical guidance for employers on the steps they should take to prevent sexual harassment of workers, following the consultation that took place over the summer. The new legal duty will take effect from 26 October 2024, following the change of law made by the Worker Protection (Amendment of Equality Act 2010) Act. We discussed the state of play as at the closure of the EHRC consultation in an earlier blog post (see here); in this blog post we take a look at the position now that the final guidance has been released.
What is new in the final guidance?
The final guidance (see here) makes clear that what is “reasonable” in the duty to take reasonable steps to prevent sexual harassment will vary between different employers, and helpfully expands upon the relevant factors in making this determination. Such factors now include the size, sector, resources and regulatory obligations of a particular employer, as well as the cost-benefit trade-off involved in taking a particular step, and whether relevant concerns have previously been raised with an employer.
The final guidance also provides some additional examples of sexual harassment at work, which provide detail about the steps that would be considered as reasonable in specific contexts (these are heavily sector-specific in both examples – the first being in the construction industry and the second a hospital-setting). The examples also make clear that “reasonable steps” in the EHRC’s view is a high threshold for employers to meet and appears to align with the original legislative wording of “all reasonable steps” that was ultimately departed from during the parliamentary process. We note that Labour has indicated in the past that this duty should be strengthened to require “all reasonable steps” – it remains to be seen how this may operate in practice as compared to the existing duty.
Steps for compliance
In addition to the final guidance, the EHRC has also produced an 8-step guide on how employers can comply with the new duty (see here). The steps include:
- Develop an effective anti-harassment policy: this policy should specify, amongst other things, who is protected, the behaviour that the policy is targeted towards, that such behaviour may lead to disciplinary action, potential aggravating factors and also that third party harassment will not be tolerated. The policy should be reviewed at regular intervals and its effectiveness monitored.
- Engage staff: workers should regularly be engaged so that an employer can understand where potential issues lie – which may include individual catch ups between employers and managers/HR, staff surveys and exit interviews.
- Assess and take steps to reduce risk in the workplace: risk assessments should be undertaken to understand, amongst other things, where the power imbalances lie, whether staff are working alone or at night and whether staff engage in crude or disrespectful behaviour at work. Of the 8 steps listed, this is likely to be the one that requires more work from employers and represents a change versus the approach that most employers have taken to date.
- Reporting: employers should consider using an anonymous reporting platform that allows workers to raise issues. Such a platform may already be in place through an employer’s whistleblowing channels.
- Training: workers of all seniority levels should be trained on what sexual harassment in the workplace might look like, what to do if they experience or witness it, and how to handle complaints.
- What to do when a harassment complaint is made: employers should be prepared to act immediately to resolve a complaint, respect confidentiality, protect the complainant from ongoing harassment and minimise the use of confidentiality agreements.
- Dealing with harassment by third parties: steps to address this may already be wrapped up in the steps taken to address worker-on-worker harassment and may include effective reporting mechanisms. The risk assessment in step three is likely to bring to light any areas for improvement in the context of third-party harassment.
- Monitor and evaluate actions: an employer should regularly monitor the steps taken in complying with this duty by reviewing complaints data for trends, anonymously surveying staff on their experiences of sexual harassment in the workplace and holding lessons-learned sessions after complaints are resolved.
Compliance with this new duty is expected to be a continuing process – so whilst the duty technically comes into force on 26 October, there is scope to build up compliance over the next few months, rather than have all steps in place by the end of October.
If you would like to discuss in further detail any of the points raised in this blog post, please get in touch with your usual Freshfields contact.
