The new legal obligation to prevent sexual harassment aims to "transform workplace cultures," as outlined in guidance released today by the Equality and Human Rights Commission (EHRC) in advance of the law change next month. Starting from October 26, 2024, employers will be required to take reasonable measures to prevent sexual harassment against their workers during employment. The EHRC has finalized its guide for employers, following a brief consultation on a draft version earlier this year. Along with the comprehensive guidance, the EHRC has created a straightforward 8-step plan for employers.

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While the guidance isn't legally enforceable, employment tribunals may use it as a critical reference when determining if an employer has fulfilled the new legal obligation.

Key Points from the Guidance

Here are the main highlights from the final guidance:

• The new preventive duty is anticipatory; employers should act before any incidents of sexual harassment occur.
• This obligation aims to bring about a cultural shift in workplaces by requiring employers to proactively implement reasonable measures to prevent sexual harassment among their workers. The mention of cultural change emphasizes the seriousness with which the EHRC expects employers to treat this legal change.
• The duty to prevent sexual harassment extends to incidents involving customers, clients, and other third parties. The EHRC previously indicated that it would enforce actions against companies neglecting the risks of third-party harassment. Although employers are typically not legally responsible for third-party harassment, the EHRC maintains that the preventive duty applies to third parties, acknowledging that workers cannot file separate claims against employers for third-party harassment.
• Employers are expected to conduct risk assessments. The EHRC has clarified that “an employer is unlikely to comply with the preventive duty unless a risk assessment is carried out.” The guidance offers additional examples of factors that may heighten the risk of sexual harassment, such as work-related travel, socializing, zero-hours contracts, and working from home.
• All employers must take action, as no one is exempt from the sexual harassment preventive duty.
• When evaluating what constitutes reasonable steps, employers should consider various factors, including the time, cost, and potential disruption of implementing certain measures, compared to the benefits achieved, any raised concerns regarding sexual harassment, adherence to standards set by regulators, and the effectiveness of previously implemented measures.
• If sexual harassment recurs after steps have been taken, this may indicate that further or different actions are necessary—suggesting that employers are expected to learn from any upheld complaints by introducing new measures or reminding employees of existing ones.

Practical Implementation of Reasonable Steps

The guidance now presents two additional examples of compliance, expanding on earlier drafts that focused more on non-compliance.

1. Construction Company: After a risk assessment reveals a high risk of sexual harassment, reasonable steps might include specialized training for managers and staff (covering complaint handling and active bystander training), leadership engagement, a senior management development program for women, confirmation to contractors that sexual harassment is unacceptable, establishing a reporting channel, maintaining a complaints record, monitoring received complaints and trends, conducting anonymous staff surveys, and collaborating with relevant employee resource groups.

2. Hospital Scenario: In cases where a senior consultant's sexual harassment remains unchecked due to his position, reasonable preventive measures could involve his suspension, a potential referral to the regulator, investigating existing allegations, training the manager who failed to address concerns, providing support for affected staff, reviewing policy effectiveness, conducting regular climate surveys, and documenting all incidents while analyzing trends.

These examples illustrate the necessity of implementing a wide range of operational measures beyond merely having policies in place.

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Recommended Actions for Employers

The guidance details numerous measures employers could adopt to prevent sexual harassment. While many recommendations echo earlier guidance from January 2020, they have gained renewed importance with the new legal requirement.

To streamline compliance, the EHRC has published an 8-step guide for employers, which includes the following recommendations:

1. Develop a robust anti-harassment policy.
2. Engage with staff.
3. Assess and mitigate workplace risks.
4. Establish reporting procedures.
5. Implement training programs.
6. Address complaints effectively.
7. Tackle harassment by third parties.
8. Monitor and evaluate actions.

For further insights on preparing for this new duty, check out our earlier article on preventing harassment and our podcast discussing whether employers are taking adequate measures. We also provide guidance and support for employers; feel free to contact us for more information.

Consequences of Non-Compliance

The primary consequence of failing to comply is the potential for increased compensation for victims of sexual harassment. Although the preventative duty cannot be enforced directly by workers, it is contingent on a worker succeeding in a harassment claim. Compensation may be raised by up to 25% if an employer is found to have violated the preventive duty in conjunction with being held liable in a worker's case, and there is no legal cap on the amount.

Additionally, there is a risk of enforcement actions from the EHRC. The EHRC has the authority to investigate and enforce the new preventive duty independently of any incidents. Given their limited resources, the EHRC is likely to focus enforcement on larger employers and prominent brands.

It is crucial to understand that compliance with the new duty is an ongoing process—not merely a one-time task to complete by October 26. Even if measures have already been taken to comply, continuous review and improvement of those measures are necessary. Conversely, if actions have not yet been implemented or there are concerns about insufficient compliance, there is still time to establish measures and enhance them over the coming months.

For more detailed information, you can access the new EHRC guidance here and the 8-step guide here.