Duty to prevent sexual harassment of employees

From 26 October 2024, employers will be under a duty to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. Employment tribunals will be able to award an uplift of up to 25% to an employee's discrimination compensation where they find that there has been a breach of that duty.

On 26 September 2024, the Equality and Human Rights Commission (EHRC) published the final version of the updated technical guidance on sexual harassment and harassment at work (Guidance). The EHRC also published an eight-step guide for employers on preventing sexual harassment (Eight-step Guide). Both documents contain worked examples illustrating practical steps employers can take to comply with the duty.

The Guidance aims to

• Help employers understand:
  • Their legal responsibilities/obligations in relation to harassment and victimisation.
  • The steps they should take to prevent harassment and victimisation at work.
  • What they should do if harassment or victimisation occurs. 
  • The factors that may be relevant in determining whether steps are reasonable, including the size and resources of the employer and the sector in which they operate.
• Help workers understand the law and what their employer should do to prevent harassment and victimisation or to respond to their complaint of harassment or victimisation.
• Give employment tribunals and courts clear guidance on the law on harassment and victimisation, the legal scope of the preventative duty and best practice on the steps that employers could take to prevent and deal with harassment and victimisation.

Eight-step Guide 

The Eight-step Guide summarises the detailed advice set out in the Guidance but it is clear that it is not an exhaustive list. However, implementing the steps should help an employer take positive action to prevent and deal with sexual harassment in the workplace. The eight steps are:

1. Developing an effective anti-harassment policy.
2. Engaging with staff.
3. Assessing and taking steps to reduce workplace risk (an employer is unlikely to be able to comply with the preventative duty unless it carries out a risk assessment considering working practices, including policies and procedures, and the working environment, power/gender imbalances, job insecurity, the presence of alcohol, out of hours working/socialising, social media, banter etc).
4. Reporting (employers are advised to check that staff are aware of reporting mechanisms and that management knows what to do if a member of staff raises a complaint of harassment).
5. Training.
6. Handling harassment complaints.
7. Dealing with third-party harassment.
8. Monitoring and evaluating actions.

Action plans

The Guidance recommends that employers produce an action plan setting out what preventative steps they will take to address any identified risk and how it will be monitored. They should also consider appointing a designated lead to take responsibility for the implementation of the action plan and compliance with the preventative duty. However, the Guidance makes it clear that management and senior leaders play a critical role in creating respectful workplaces free from harassment. They should model respectful behaviour and visibly promote a positive and inclusive workplace culture where harassment is taken seriously and not tolerated.

If you have any queries or need assistance, please contact Jill Donabie at [email protected] or call 0191 211 7933