Guidance on new duty to prevent workplace sexual harassment

On 26 October 2024 the law on sexual harassment is changing. Employers will be under a new legal duty to take reasonable steps to prevent sexual harassment of their workers in the course of employment. This will require employers to take positive and proactive steps.

If they fail to do so, Employment Tribunals will have the power to increase compensation in a sexual harassment claim by up to 25%. The Equality and Human Rights Commission (EHRC) can also take enforcement action.

In our recent podcast, we discussed the background and the practical impact on employers, based on the draft version of the EHRC technical guidance.

The final version of the technical guidance has now been published. The focus is helping employers protect their workers and transform workplace cultures. Although not legally binding, Tribunals are likely to rely on it when looking at the scope of the legal duty and if an employer has met it.

Five key points:

1. ‘Reasonable steps’: The list of relevant factors in deciding whether a step is reasonable is at paragraph 3.32 and has been expanded.
2. Practical steps: Chapter 4 contains a detailed list of the steps employers should consider taking. There is also a new employer 8-step guide. These are essential reading for HR teams.
3. Third party harassment: The preventative duty extends to third parties (including customers, patients, students and members of the public). But a worker cannot bring a standalone claim for third party harassment (for now).
4. Risk assessments: An employer is unlikely to be able to comply unless they carry out a risk assessment. This should be a key priority. There is a long list of high-risk factors to consider, including male-dominated workforces, gender power imbalances and isolated working (paragraph 4.11).
5. Ongoing exercise: Employers will need to continuously monitor, refresh and document the steps they are taking based on their assessment of the changing risks. Have the steps taken been effective? Are there any further steps it would be reasonable to take?

What employers need to do

1. Read and understand the technical guidance and employer 8-step guide.
2. Carry out a risk assessment.
3. Decide what reasonable steps your organisation needs to take to reduce the risks and take them.
4. Collect evidence of action taken.
5. Repeat steps 1-4 regularly!

Finally, the guidance says that although the preventative duty only applies to sexual harassment, all other types of harassment are unlawful and “employers should take steps to prevent all types of harassment at work”.