What do employers need to know about the new duty to take reasonable steps to prevent sexual harassment?

Back in November 2023, we wrote about the Worker Protection Bill receiving Royal Assent and the new duty on employers to take “reasonable steps” to prevent sexual harassment of their employees in the course of their employment. This duty will come into force this month, on 26 October 2024. 

Last week, the Equality and Human Rights Commission updated their technical guidance on the preventative duty and published an 8-step guide for employers on preventing sexual harassment at work. The Guidance emphasises that the duty is designed to improve workplace cultures by requiring employers to anticipate how sexual harassment might happen in their workplace and to take proactive reasonable steps to prevent it from happening. The Guidance therefore makes clear that the duty is an anticipatory one, and that it is not sufficient for employers to wait for a complaint of sexual harassment to be raised before taking action. Further still, if sexual harassment has taken place, the duty requires that the employer take action to stop the harassment from happening again. 

What does “reasonable steps” mean?

The obligation is on employers to take “reasonable steps” but crucially, it is not an obligation on employers to take all reasonable steps. 

The Practical Guidance recognises that what is reasonable will vary from employer to employer and will depend on a number of factors, including the size and resources of the employer, time and cost of the step versus benefit, the nature of the workplace, risks, types of third parties that workers may have contact with and whether steps appear to have been effective or not. The Guidance additionally states that a step may be reasonable, even if it would not have prevented a particular act of sexual harassment. 

Practical Guidance to Employers: 

The EHRC recognises that the Equality Act 2010 does not list specific steps that would show an employer has taken “reasonable steps” and so provides a non-exhaustive 8-step guide that illustrates actions that could be taken. In sum these are: 

• Develop an effective anti-harassment policy – Employers should review their current policies to ensure that harassment is clearly defined and provides examples. The policy should also include effective procedures for reporting and responding to complaints of harassment. 

• Engage Staff –  Employers should consider conducting 1-2-1s, staff surveys,  exit interviews and have open door polices. Workers should all be made aware of how they can report sexual harassment, where they can access the harassment policy and the consequences of breaching the policy. 

• Assess and take steps to reduce risk in the workplace – Employers are encouraged to undertake risk assessments to aid compliance with the preventative duty. Australia have adopted a similar duty for employers and the use of risk assessments has resulted in employers viewing sexual harassment through a health and safety lens, enabling them to better  assess risk and mitigation measures. 

• Reporting – Central and confidential records should be kept of all complaints, whether raised formally or informally. Employers should consider reporting systems that allow reports to be made both anonymously or in name. 

• Training – Workers, including managers and senior staff, should receive training on what sexual harassment in the workplace looks like, what should be done if it is experienced or witnessed, and how complaints should be handled. The Guide also explicitly states that in industries were third-party harassment is more likely, workers should be trained on how to address these issues. 

• What to do when a harassment complaint is made – The Guide tells employers to act immediately to resolve any complaints, whilst taking into account how the worker wants the complaint to be resolved. Complainants should be protected from ongoing harassment or victimisation and anyone reporting a criminal offence should be asked if they want to report the matter to the police and given support. There should also be careful consideration of any wider cultural problems identified during investigations and steps taken to address those problems. 

• Dealing with Harassment by Third Parties – many employers may not pay as much attention to third party harassment compared with harassment by a colleague, but the wording of the duty is wide enough that harassment by a third party can be captured under the preventative duty. 

• Monitoring and Evaluating actions – the effectiveness of steps taken must be regularly evaluated in order to comply with the duty. 

Is more yet to come for the preventative duty? 

Prior to the general election, Labour indicated their intention to increase the preventative duty to cover “all reasonable steps” to prevent sexual harassment, make employers liable for harassment by customers and other third parties and giving whistleblowing protections to those who report sexual harassment. Employers are therefore strongly encouraged to get procedures and policies into place now to ensure they are prepared should such changes come into law. 

Farore Law is a leading boutique law firm that has a wealth of experience in employers on their policies and procedures and providing training on sexual harassment in the workplace. Our lawyers also frequently advise senior executives and other individuals who have been subjected to sexual harassment (or have been accused of committing sexual harassment) and recognise the importance of anonymity and reputation management for all involved.

Please contact us if you require assistance with your company’s policies or training requirements, or if you require legal advice after being subjected to sexual harassment and/or less favourable treatment because you have either submitted to, or rejected, sexual harassment.