Equality and Human Rights Commission finalises guidance on how employers can prevent sexual harassment in the workplace

In December 2023, we wrote an article regarding legislation that was due to come into force in 2024 which requires employers to take reasonable steps to prevent sexual harassment in the workplace. The Equality Act 2010 defines sexual harassment as “unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force on 26 October 2024 and, under section 40(A) of the Act, introduced the new duty for employers to take reasonable steps to prevent sexual harassment. It is an anticipatory duty, meaning employers should not wait for a complaint of sexual harassment to be made before taking action.

Employers must be able to demonstrate that they have taken reasonable steps to prevent sexual harassment. This is an objective test and will vary from employer to employer. Factors that the Equality and Human Rights Commission (EHRC) deem to be relevant include the size of the employer, the sector and the nature of the working environment, i.e., whether it is an office, warehouse, etc.

The EHRC has published its “Employer 8-step Guide” on how employers can prevent sexual harassment in the workplace. Whilst it is not legally binding, it appears this will be the first port of call for employment tribunals when deciding if an employer has abided by its duty to prevent sexual harassment in the workplace. In this article, we will explore their guidance in more detail.

1. Develop an effective anti-harassment policy

A robust policy on sexual harassment should be included in every workplace, outlining a zero-tolerance policy toward all forms of harassment. Policies should be reviewed and updated regularly and cover all aspects of the business. The EHRC’s guidance outlines that a good policy should:

• Specify who is protected under the legislation and in turn, the policy
• Explain that the repercussions of committing harassment include disciplinary actions up to and including dismissal
• Define sexual harassment, providing clear examples of behaviours that constitute sexual harassment, and clarify that any aggravating factors will be considered when determining appropriate disciplinary action
• Outline the internal procedure for receiving and responding to complaints of harassment
• Address the issue of harassment committed by third parties (such as customer, client, supplier or patient)

2. Engage your staff

Employers should ensure that they conduct regular 1-2-1s, run staff surveys and exit interviews, and have open door policies. These should be used to help identify potential issues and to monitor whether steps which have been taken are effective.

All workers and employees should be made aware of your policy on sexual harassment, the consequences of breaching that policy and how sexual harassment can be reported.

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

Risk assessments should be done regularly and if conducted properly, will help you to comply with your duty to prevent sexual harassment. Certain factors that could be considered include:

• Where are the power imbalances?
• Is there a lack of diversity in your workforce?
• Is there job insecurity for a particular group or role?
• Are staff working alone or at night?
• Do your staff have customer-facing duties?
• Are customers or staff drinking alcohol?
• Are staff expected to attend external events, conferences or training?
• Do staff socialise outside of work?
• Do staff engage in crude or disrespectful behaviour at work?

4. Reporting

Staff should be made aware of the reporting methods for reporting sexual harassment. Employers may consider implementing a reporting system, either online, via the telephone or in person, and staff should be given the option to raise concerns in name or anonymously. All reports of sexual harassment, whether raised formally or informally, should be documented and kept confidential.

5. Training

All staff, no matter their seniority, should receive training on what sexual harassment in the workplace looks like and what to do if they are victim of sexual harassment, or what to do if they witness sexual harassment taking place. Training should take place regularly.

HR and management should also receive training on how to effectively handle complaints of sexual harassment.

6. What to do when a harassment complaint is made

All complaints made of sexual harassment should be acted upon without delay. As an employer, your duty to take reasonable steps to prevent sexual harassment also extends to prevent ongoing harassment or victimisation following an initial occurrence of harassment or victimisation. The accused should be refrained from contacting or seeing the complainant during the course of any internal or external investigations. The complainant should be informed of developments and outcomes in a timely manner.

You should give the complainant the option to go to the police if they believe the harassment constitutes a criminal offence, and you should support them throughout the process should they decide to.

Only use confidentiality agreements where it is lawful, necessary and appropriate to do so.

7. Dealing with harassment by third parties

Establishing reporting mechanisms and robust risk assessments will be key to preventing sexual harassment by third parties.

8. Monitor and evaluate your actions

It is important to monitor and evaluate the above steps to ensure their effectiveness. It is not enough to simply put them in place, employers should regularly check to see if the steps are working. The EHRC recommends that to evaluate effectiveness, employers could:

• Review informal and formal complaints data to see if there are any trends or particular issues
• Survey staff anonymously on their experiences of sexual harassment, including whether they have witnessed or been subjected to harassment, whether they have or would in the future report it (and if not, why not)
• Compare reported complaints with survey feedback to ensure you have an accurate reflection of the level of sexual harassment in your workplace, and take appropriate actions
• Hold lessons-learned sessions after any complaints of sexual harassment are resolved

What if employers fail to take reasonable steps to prevent sexual harassment?

The tribunal have the power to increase a claimant’s compensation by up to 25% if it finds that sexual harassment has occurred and an employer has breached its duty to take reasonable steps to prevent sexual harassment of its employees during the course of their employment.

In addition, the EHRC can take enforcement action against companies who are failing to take reasonable steps to prevent sexual harassment which can in turn lead to reputational damage, which is a particular risk for larger companies.

If you would like assistance in drafting your policies or require advice, do not hesitate to get in contact with the Employment team at Thomson Snell & Passmore.

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