The Equality and Human Rights Commission publishes further guidance for employers on preventing sexual harassment at work

The Equality and Human Rights Commission’s (EHRC) finalised guidance for employers on preventing sexual harassment in the workplace was issued in October 2024. To briefly recap, the EHRC published an “Employer 8-step Guide” for employers, which comprised of the following:

1. Develop an effective anti-harassment policy
2. Engage staff
3. Assess and take steps to reduce risk in the workplace
4. Reporting
5. Training
6. What to do if a harassment complaint is made
7. Dealing with harassment by third parties
8. Monitor and evaluate action plans.

On 12 November, the EHRC published further guidance in the form of a checklist, monitoring log and action plan for employers in light of the Worker Protection (Amendment of Equality Act 2010) Act 2023. In this article, we will explore the updated guidance in more detail.

What is sexual harassment?

Sexual harassment is unwanted behaviour of a sexual nature that violates someone’s dignity or creates an intimidating, degrading, humiliating, offensive or hostile environment as per Section 26 of the Equality Act 2010. Types of sexual harassment of a sexual nature include inappropriate comments, displaying sexual content, touching and sexually offensive jokes or jokes about someone’s gender, or gender reassignment. Even if one of the effects listed was not the intended outcome, it can still constitute sexual harassment.

What is the significance of the Worker Protection (Amendment of Equality Act 2010) Act 2023 on employers?

All employers owe their workers a duty of care. The Worker Protection (Amendment of Equality Act 2010) Act 2023, which came into force on 26 October 2024, enhances that duty and places a preventative duty on employers to stop harassment (including sexual harassment) and discrimination in the workplace. This means employers must take proactive steps to tackle harassment and discrimination before it occurs. This includes the obligation to prevent harassment and discrimination by third parties such as by a supplier, contractor, customer or client, patient or parent or guardian or student (in the public sector context). By virtue of Section 40(A) of the Act, employers must take “reasonable steps” to prevent sexual harassment. These include having robust company policies in place addressing how allegations of harassment are dealt with, regular staff training and updated risk assessments.

What constitutes “reasonable steps”?

Whilst there are no minimum standards an employee must meet to prevent sexual harassment from occurring by virtue of the 2023 Act or the guidance, in considering what steps will be reasonable, employers must consider factors such as the size of the business, the size of the workforce and any vulnerabilities the workforce may have (such as age or sex), the working environment, and what third parties are likely to come into contact with during the course of their work. What may be reasonable for one business may not be considered reasonable for another.

The duty imposed on employers requires ongoing monitoring of the effectiveness of implemented strategies to see if they have having a positive effect. If an employer has failed to take reasonable steps to prevent sexual harassment, the Employment Tribunal can award a compensation uplift of up to 25% to claimants.

What does the updated guidance include?

The EHRC has provided templates to complement existing HR policies in preventing sexual harassment. The updated guidance includes the following:

A checklist for reasonable steps against sexual harassment

The largest focus within the guidance is on employers formulating a checklist to ensure reasonable steps are being proactively taken. The checklist makes references to shifts, as it was initially created for use in the hospitality sector, however the checklist should be adapted to suit the appropriate working environment.

Employers must consider how the checklist will work in practice, as a checklist for a hospitality setting, for example, is unlikely to be effective in an office based environment. In order to effectively adapt the checklist to the appropriate work setting, the guidance encourages employers to consider the following:

• Are team managers or supervisors the right people to use it?
• How easy would it be for your team managers or supervisors to use it?
• How can you support staff to use it?
• Do you need to adapt this tool for your workplace?
• Who do you need to speak to so that the checklist is used affectively across your organisation?

Further examples of what employers may need to consider include the risk of a power imbalance (e.g. where the workplace may be more male dominated), especially where there may be other risk factors such as isolated working hours or shared changing and showering facilities.

The guidance provides three main areas for employers to consider when formulating their checklists to prevent sexual harassment and some suggested actions employers should take, asking questions along the way (in bold), to test the degree to which the employer can demonstrate that it is taking reasonable steps to prevent sexual harassment:

1.Communicating with staff

• Put up posters or notices where staff, customers or clients can see them to make sure that it is known your organisation will not tolerate sexual harassment. Have you put these posters up in places where they are easily noticeable?
• Remind staff what constitutes sexual harassment and how it will be dealt with. Remind staff that sexual harassment can take place virtually via social media or messaging tools, such as Microsoft Teams. Are you regularly reminding staff what constitutes sexual harassment?
• Reiterating that the company/organisation has a zero tolerance approach to sexual harassment during meetings or briefings. Have you reminded staff on your zero tolerance policy toward sexual harassment?
• Regularly check in with all staff to enquire as to whether they have any concerns, paying particular attention to those more vulnerable (e.g.where English might not be a staff member’s first language, as they may not fully understand the policies against sexual harassment or who to report to). Are you ensuring that you are checking in with staff?

2.Changing the working environment

• Employers are encouraged to ensure staff have more than one trusted person they can turn to besides their manager. Have you chosen the appropriate people and informed staff who those people are?
• Ensure staff know who is responsible for dealing with any reports or incidents of sexual harassment. Have you informed staff who that is and how they can reach them?
• Conducting surveys to find out whether staff have ever felt, or feel, vulnerable in the workplace or whether they ever feel they are being put in dangerous situations at work. If so, employers should then consider what can be done to change that. The example given by the guidance includes ensuring for vulnerable members of staff do not work alone. Are regular surveys being conducted and have you considered the findings and acted appropriately upon those findings?
• Employers should pay close attention to staff who may be more vulnerable to sexual harassment, such as younger members of staff. Have you identified who these staff might be and have you taken any further steps to ensure they are protected, for example making sure they do not work alone?
• Provide the opportunity for staff to report anonymously. Do staff know how to do this and have you provided regular training to ensure they know how?
• Remind staff that any social events taking place outside of working hours are still associated with their workplace and any reports or incidents will be taken as seriously as though they occurred during working hours. Particular attention should be given to events where alcohol may be consumed. Have you made staff aware that if sexual harassment occurs outside of working hours, you may still be legally responsible for their actions?

3.Working practices

• Have set policies, procedures or processes for what to do if third party harassment occurs towards a member of staff (such as warning systems, removing them from the venue or putting permanent bans in place) that all staff are aware of. Are your policies and processes up to date, are they robust and are staff aware of them?
• Keep staff regularly trained and provide staff with advice for intervening safely if they see sexual harassment occurring in the workplace or if someone reports an incident of sexual harassment to them. Are regular training sessions being provided and is that training being regularly reviewed?
• Share incidents of sexual harassment with your HR team, if applicable. They can log them and identify any patterns, to see if there’s anything that can be done to stop it from happening it again. Do your HR department have the sufficient software or equipment to log incidents and keep them confidential? Are incidents being reviewed regularly? If patterns are forming, what is being done about it?

An action plan

The guidance encourages employers to record an action plan to ensure the checklist is part of your working practice. Some examples include:

• Updating sexual harassment policies and procedures and making staff aware of them
• Training staff on what to do if they witness an instance of sexual harassment
• Encouraging and supporting staff to use the checklist.

Monitoring logs

The EHRC provides a standard monitoring log for when incidents are reported, but they also suggest employers complete one every quarter to help keep track of incidents and monitor how effective their strategies are in preventing further instances of sexual harassment. A copy of the guidance and the monitoring log templates can be accessed here https://www.equalityhumanrights.com/guidance/preventing-sexual-harassment-work-checklist-and-action-plan-employers.

Conclusion

Employers must remember that despite this being just guidance from the EHRC, they have a legal duty to take reasonable steps to prevent sexual harassment in the workplace under the Worker Protection (Amendment of Equality Act 2010) Act 2023. Adaptation must be made to the checklist to ensure compliance within the employers own line of business. Merely following the checklist meant for hospitality means these steps may not be deemed reasonable for businesses who fall outside of the hospitality industry. Careful consideration must be made for the different risk situations staff may face.

If you are an employer and require any assistance in drafting robust policies, or require advice regarding how you can effectively comply with the preventative duty to prevent sexual harassment including creation or review of a checklist and action plan, do not hesitate to get in contact with the team at Thomson Snell & Passmore.

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