Now published: Final guidance on preventing workplace sexual harassment and a new Employer 8-Step Guide

On 26 September 2024, the Equality and Human Rights Commission (‘EHRC’) published the final Sexual Harassment and Harassment at Work: Technical Guidance  (‘Final Guidance’) after a short consultation on a draft version earlier this year. The EHRC has also published a new Employer 8-step guide: Preventing sexual harassment at work. These documents are designed to assist employers in putting in place measures to comply with the new law from 26 October 2024.

What’s new?

The large majority of the Final Guidance remains unchanged since the consultation on the draft version. However, key changes include:

• Risk assessments – Failure to conduct a sexual harassment risk assessment will result in an employer most likely being in breach of the preventative duty.
• What is considered a reasonable step? – This will depend on the organisation’s size, resources and working environment. There is particular focus on taking a sector-specific approach.
• Third party harassment – Whilst employers are not legally liable for the harassment of staff by third parties under the Equality Act 2010, the preventative duty (and the consequential compensatory uplift of up to 25%) extends to the prevention of sexual harassment by third parties. Organisations will need to consider what risks are posed to staff from third parties specific to their business and what steps they may need to put in place to combat those risks.
• Focus on pro-activity – Employers have a duty to respond to concerns urgently, understand how to take appropriate action, and provide an outcome in a timely manner.
• Complaints to the EHRC – The Final Guidance states that workers can report concerns directly to the EHRC, so we may see more employers being contacted directly by the EHRC and being required to explain what compliance steps they have taken.
• New Employer 8-Step Guide – This guide summarises the Final Guidance and is the key starting point for employers in their compliance journey. The 8 steps include:
  • STEP 1 – Develop an effective anti-harassment policy, which should be reviewed and updated as necessary.
  • STEP 2 – Engage with staff on sexual harassment risks and the effectiveness of preventative steps taken, including conducting 1-1 meetings, surveys and exit interviews.
  • STEP 3 – Conduct a sexual harassment risk assessment to understand risk factors within the organisation and identify the steps needed to comply with the preventative duty.
  • STEP 4 – Put in place both informal and formal processes to report and deal with workplace harassment, while keeping centralised and confidential records of the complaints raised.
  • STEP 5 – Train staff at all levels on what sexual harassment in the workplace looks like, what to do if they experience or witness it and how to handle any complaints of harassment.
  • STEP 6 – Thoroughly consider how to deal with sexual harassment complaints including taking into account how the individual wants the complaint to be dealt with, the duty to protect against ongoing harassment, maintaining confidentiality and dealing with complaints/communicating the outcome in a timely manner. NDAs should only be used in situations where it is lawful, necessary, and appropriate to do so.
  • STEP 7 – Take necessary steps to prevent third party harassment, considering an appropriate reporting mechanism and carrying out risk assessments where staff might be left alone with a third party.
  • STEP 8 – Monitor and evaluate your effectiveness in addressing workplace sexual harassment. This process can involve reviewing formal and informal complaints to spot patterns, comparing survey feedback over a period of time, encouraging workers to provide feedback on efforts being made to comply with the prevention duty and acting on lessons learnt after any complaints of sexual harassment are resolved.

What should you do now?

We recommend that you review the EHRC’s Employer 8-step guide: Preventing sexual harassment at work to ascertain what key steps you should start taking now, including:

• conducting a sexual harassment risk assessment based on the risk factors specific to your organisation, identifying any risks and taking steps to mitigate those risks;
• reviewing and updating your policies, procedures and training on sexual harassment, and workforce awareness of these; and
• putting in place effective mechanisms to regularly review compliance with the preventative duty, such as staff surveys, complaints monitoring and anonymous reporting channels.

Please contact a member of our Employment team if you wish to discuss the contents of this article or require assistance with any aspects of compliance with the new preventative duty.