26 October 2024 is a landmark date for employers – for the first time, they will have a positive duty to take reasonable steps to prevent sexual harassment in the workplace.  Now, with a month to go, the Equality and Human Rights Commission (EHRC) has just published its updated technical guidance on sexual harassment and harassment at work with the aim of helping employers to navigate, and comply with, this new duty.

The updated technical guidance follows a short period of consultation this summer (see our previous Be Aware alert).  The consultation responses do not appear to have been published; instead the new guidance is simply available on the EHRC’s website, along with a new Employer 8-step guide: Preventing sexual harassment at work.

The new guidance is clear: the new positive preventative duty is ‘designed to transform workplace cultures‘. Employers are required to take positive and proactive reasonable steps to prevent sexual harassment. Importantly:

• employers should not wait until a complaint of sexual harassment has been raised before taking any action; and
• employers should be anticipating scenarios when workers may be subject to sexual harassment and take action to prevent such harassment taking place; and
• if sexual harassment has taken place, employers should take action to stop it from happening again.

The guidance is also clear that managers and senior leaders have a critical role to play.  They should role model appropriate behaviours and visibly promote a positive and inclusive workplace culture where harassment is taken seriously and not tolerated.

What does this mean in practice?

• Reasonable measures: Employers must take reasonable steps to comply with the duty. However, the guidance is clear that what is reasonable will vary from employer to employer; NB however, all employers must take action – no employer is exempt. A range of factors will determine what might be reasonable and this includes such things as the size and resources of the employer; the nature of the working environment; the time, cost and potential disruption of a step versus the benefit it could achieve; and the likely effect of a particular step. For further information see section 3.37 of the guidance.
• Risk assessment: A top priority for employers should be conducting a sexual harassment risk assessment which identifies both the risks in the workplace and the control measures which can be used to minimise the risks. Section 4.10 of the guidance sets out the types of factors which employers should consider.  They include consideration of out of hours working; lone working; power imbalances; and socialising at work events.
• Effective policies and procedures: Another key priority for employers is to have in place a comprehensive and regularly reviewed anti-harassment policy. Section 4.18 of the guidance sets out the important factors which an effective policy could cover.  They include statements of a zero-tolerance approach to sexual harassment, that sexual harassment is unlawful and that sexual harassment may lead to disciplinary action. The guidance also indicates that third party harassment should be addressed.
• Means of detecting sexual harassment: The guidance is clear that employers need to be proactively aware of what is happening in the workplace. It suggests that workers should be given every opportunity to raise issues including through staff networks; informal one-to-ones; performance and / or return to work meetings; and exit interviews.
• Training and awareness: Employers must make sure that all workers are aware of the employer’s anti-harassment policies, including through communication at induction processes, and that they are easily accessible. Employers should keep records of training attendees and ensure that training is regularly refreshed.  Employers should ensure that staff are aware of reporting mechanisms and that managers know what to do if a staff member raises a complaint.

What are the consequences of non-compliance?

• The EHRC has the power to take enforcement action which can include investigation of an employer; the issuing of an unlawful act notice; formal legally binding agreements with an employer to prevent future unlawful acts; and application for an injunction to restrain any unlawful acts.
• If an employee succeeds in a claim for sexual harassment and is awarded compensation, a tribunal can increase the compensation by up to 25% if it finds that the preventative duty has been breached. The amount of the uplift will reflect the extent to which the tribunal considers the employer has not complied with the preventative duty.

With the clock now quickly ticking until the new duty takes effect, employers cannot afford to delay. We can help you get ready with advice on appropriate risk assessment measures and with the drafting and implementation of policies and training programmes. Please do not hesitate to reach out to our Employment Group and / or your usual DLA Piper contact.

Useful links:

• Worker Protection (Amendment of Equality Act 2010) Act 2023
• EHRC press release (26 September 2024)

 

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