On the 26 October 2024, employers will be under a new proactive duty to take reasonable steps to prevent sexual harassment in the course of employment.

We recently delivered a training webinar which explained the new duty in more detail, including the EHRC guidance, and what reasonable steps might look like in practice.

At the time of the webinar, the EHRC guidance was in draft form and the final version has now been published. You can read the guidance in full here and below we have summarised some of the key changes:

• The updated guidance explains that an employer who does not carry out a risk assessment is unlikely to be able to comply with the new duty. There is detailed guidance on what to consider when carrying out a risk assessment.
• A sexual harassment policy should “state that the law requires employers to take reasonable steps to prevent sexual harassment of workers in the course of their employment.”
• A good policy will also address third party harassment, including that “while an individual cannot bring a claim for third party harassment alone, it can still result in legal liability” and that “the law requires employers to take reasonable steps to prevent sexual harassment by third parties” (although employers should consider how to word the latter, given the position on third-party harassment in the legislation itself).
• While a worker cannot bring a stand-alone claim for third party harassment in the employment tribunal, the guidance explains that the preventative duty does require employers to take reasonable steps to prevent sexual harassment by third parties.
• Employers should keep records of informal complaints and not just formal grievances.
• The law does not list specific steps an employer must take but every employer must take action, and what will be reasonable will vary depending on a number of factors, such as:
  • the size and resources of the employer
  • the sector the employer operates in
  • the risks present in the workplace
  • the nature of any contact with third parties
  • the time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve
  • compliance with any relevant regulatory standards (for example, the Financial Conduct Authority or General Medical Council)
• New worked examples are provided (one involving a large construction company and the other a hospital), detailing what the EHRC would consider to be reasonable steps in the particular scenarios. The examples, and guidance generally, suggests that “reasonable steps” in the EHRC’s view is a high threshold for employers to meet.
• If workers are concerned that an employer is not complying with the new duty, they can report to the EHRC. However, the guidance explains that workers should consider first raising their concerns with the employer or trade union before reporting to the EHRC.

The EHRC has also produced an 8-step guide on how employers can comply with the new duty. The steps are as follows:

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

You can read the guide in full here.

We recently published our first round of top tips for getting your organisation ready and will be sharing more top tips in the coming weeks.

Recently published advice is also available from ACAS, covering what sexual harassment is, preventing it and what to do when you witness it.

As the EHRC guidance explains: “Employers should not wait until a complaint of sexual harassment has been raised before they take any action. The duty requires that employers should anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place. However, if sexual harassment has taken place, the preventative duty means an employer should take action to stop sexual harassment from happening again. If an employer fails to take reasonable steps to comply with the preventative duty, there are consequences.”

Please get in touch with Jamie Meechan or your usual Burness Paull contact if you would like specific advice for your organisation, including access to our webinar recording, as well as a copy of the slides and a template sexual harassment policy (which has been updated to reflect the updated EHRC guidance).

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