EHRC publishes updated Sexual Harassment Guidance

In just over three weeks, on 26 October 2024, the new duty to take reasonable steps to prevent sexual harassment in the workplace will come into force. To help employers comply with this new duty, the Equality and Human Rights Commission (EHRC) has published its final updated technical guidance on sexual harassment and harassment at work.

The EHRC consulted on its proposals on the updated guidance earlier in the summer.  The results of the consultation have not been published, but the final version contains a number of key differences to the draft. There is also a new Employer 8-step guide: Preventing sexual harassment at work. 

This article explains what the final EHRC guidance means in practice and sets out a 4-step action plan of how employers should prepare for the new duty.  

What are the key changes to the final guidance since the consultation? 

The key points to note when comparing the final version of the guidance with earlier draft are:

1. The new section on the new preventative duty (in chapter 3) has been expanded significantly since the first draft so that it now gives more detail on how to decide whether a step is reasonable and the factors that may be relevant (see para 3.32).  
2. There are new examples to illustrate what reasonable steps employers of different sizes and types can take to eliminate harassment in the workplace. The first relates to a construction company where the risks include a male dominated workforce and regular worker interaction with third party contractors; and a hospital where risks include imbalance of power and inaction by the ward manager because of fear that no action will be taken.  The remaining example (which is not new) is a theatre company with limited resources such that the cost of engaging an external provider to deliver training was a disproportionate amount of its limited budget.  
3. Chapter 4: “Taking steps to prevent and respond to harassment” has been substantially updated since the draft published for consultation. The guidance now includes more information on what a risk assessment should consider, including the factors which may be relevant when assessing risk (such as job insecurity, lone working, presence of alcohol and night working), and the factors which may increase risk (such as a male dominated workforce and workplaces that permit alcohol consumption).  

What does the updated EHRC guidance mean for employers in practice?

As employers prepare for the new duty, the key points which come out of the updated EHRC guidance are as follows:

• Employers are required to take reasonable steps to prevent sexual harassment by their own workers and by third parties such as clients and customers
• The new preventative duty is an anticipatory duty. The updated guidance explains that it is designed to transform workplace cultures by requiring employers to take positive and proactive reasonable steps to prevent sexual harassment of their workers.
• The new preventative duty applies only to sexual harassment and not to harassment related to a protected characteristic, such as sex. Nor does it apply to the third form of harassment which is less favourable treatment for rejecting or submitting to unwanted conduct.  
• Employers should not wait until a complaint of sexual harassment occurs before taking action. Instead, they should undertake risk assessments to identify situations in which their workers may be subject to sexual harassment and take action to prevent such harassment taking place.
• An employer is unlikely to have complied with the new duty unless they have conducted a risk assessment. 
• The law does not list specific steps an employer must take to comply with the new preventative duty.  Instead, the guidance provides that whether or not an employer has taken reasonable steps in an objective test and will depend on the facts and circumstances of each situation.  There is no definitive list of steps to take - every employer’s situation will be different – although we have already put a lot of thought into the steps that many employers should be taking.
• The new updated version confirms there is no standalone claim for third party harassment in the employment tribunal. However, the preventative duty does require employer to take reasonable steps to prevent sexual harassment of workers by third parties such as customers and clients. 
• Employers should produce an action plan and may want to consider appointing a designated lead to take responsibility for implementation of the action plan and compliance with the preventative duty. 

How should employers prepare for the new duty? 

Now that the EHRC has published its final updated technical guidance on sexual harassment to reflect the new duty on employers, employers should take steps to ensure compliance with the new duty, and to foster an inclusive and positive workplace culture. 

This involves undertaking a comprehensive review of current policies and procedures, training and workplace culture and implementing practical measures to help adopt a proactive stance against sexual harassment and other negative workplace behaviours. Agile policies and procedures are needed to address and demonstrate compliance in this area at both an individual level (for managers) and at company level. 

Step One – Review and Understand What you are Currently Doing 

• Gather all policies that you have which are relevant to preventing sexual harassment. This will include your equal opportunities policy, bullying and anti-harassment policy, whistleblowing policy, data protection and disciplinary policies. 
• Gather all training that you currently do in relation to these policies, and any programmes you use for communicating them (such as posters, internal newsletters, staff meetings).
• Gather all policies and programmes that you have in relation to reporting. This will include formal reporting channels and telephone hotlines run by third parties. 

Step Two – Consider and Review your Current Culture and Risk Points

• What is your current culture?  
  • Review what claims, grievances and issues you have had, perhaps over the last three years. Do you carry out leaving interviews and can you review those?
  • Do you do culture or engagement surveys? Do they ask relevant questions?
  • How are complaints recorded, investigated and resolved? Do they follow your policies? Do they adequately observe confidentiality and support individuals involved? 

• Do you need to know more about your current culture and any issues?
  • Can you conduct leaving interviews or add questions around this area?
  • Can you do engagement surveys or, if you already do, can you add questions relating to ‘speak up’ culture?
  • Can you do a culture survey that is specifically related to sexual harassment?

• What actually is your risk?         
  • What are the risks of sexual harassment occurring, and where and when may it be more likely to occur?
  • Do you have any learning from issues which have arisen in relation to, for instance, relationship at work policies, alcohol consumption policies, work trip policies, social event policies?
  • What is the best way of preventing the risk of sexual harassment, as opposed to simply reacting to issues as they arise?

Step Three – Put in Place an Action Plan 

• Do you need to update your policies? 
  • Do they cover social media and out of work scenarios? 
  • Are your reporting mechanisms (both internal and external) sufficient? 
  • Have you considered publishing your policies on your external facing website? 
  • Should you have a standalone sexual harassment policy?

• Do you need to update your training or awareness or consider a campaign on this area? 
  • Has everyone within the organisation received specific training on sexual harassment? Has this been done recently?
  • Is your training sufficiently targeted at the right levels of staff and tailored by role?  
  • Does it include situational training and training for those who witness sexual harassment? 

• Do you need to improve the way you communicate your policies to drive a zero-tolerance culture regarding harassment?  
  • Have you considered appointing a senior manager as a workplace champion to assess feedback on whether policies and training are working?
  • Have you provided training to the HR team and investigating managers on how to provide support and investigate complaints in a trauma-informed manner?
  • Have you considered appointing other (more junior) staff within the organisation as points of support for those who lodge sexual harassment complaints.

• What can you do to review your culture? Can you update leaving interviews, engagement surveys and think about a culture audit?

• Can you do a risk assessment?

Step Four – Plan Timing and a Rolling Review

Get in touch for advice

We can provide bespoke advice tailored to your firm’s needs. Our approach is not just about meeting the new requirements; it’s about fostering a zero-tolerance environment that drives positive change. Our goal is to help you create effective resolution pathways, pinpoint risk areas, and ultimately cultivate a superior workplace culture.

Click here for more information on how we can help.

Contact us.

Further sector focussed reading: 
Financial services: https://www.clydeco.com/en/insights/2024/07/culture-in-financial-services-new-duty-to-prevent
Insurers: https://www.clydeco.com/en/insights/2024/08/culture-in-insurance-firms-new-duty-to-prevent-sex
Professional Services https://www.clydeco.com/en/reports/2024/05/culture-in-professional-services-firms-new-duty-to
Aviation: https://www.clydeco.com/en/insights/2024/09/navigating-the-skies-for-turbulence-new-duty-to-pr

To learn more about background to the new duty read our original article: Don’t get caught out: Why employers should plan ahead for the impending duty to “take reasonable ste : Clyde & Co (clydeco.com)