Key takeaways

• In the words of the EHRC, this new duty is “designed to transform workplace cultures by requiring employers to take positive and proactive reasonable steps to prevent sexual harassment of their workers”. It will sit alongside existing protections but demands a more proactive approach from employers to identify and address risk.
• The guidance is clear that the duty on employers to prevent sexual harassment covers harassment by third parties as well as to its employees. Strictly speaking, an employee would not be able to bring a standalone claim in the employment tribunal about third-party harassment unless an employer's failure to act was itself discriminatory. However, the guidance indicates that the EHRC could bring separate enforcement action for third-party harassment (as part of an employer's failure to comply with its preventative duty).
• Further information on the new duty can be found in our vlog from the London Baker McKenzie Employment Team’s Diving into Diversity Vlog series.

For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie contact.

In more detail

Technical guidance

The updated version of the technical guidance will be useful in determining what a reasonable step might entail. It suggests (for example) that relevant factors may include the likely effectiveness of a particular step, and that employers may take into account the time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve.

It also flags that compliance with relevant regulatory standards may impact whether a step is considered reasonable, as would whether concerns have already been raised with the employer regarding sexual harassment. If any steps have proved ineffective in the past, alternative action should be explored.

It also adds two new detailed example scenarios (a large firm in the construction industry and a hospital). The examples illustrate the process which the EHRC expects employers to go through when conducting a risk assessment, and provides useful examples of what reasonable steps might be, which may be transferable. The guidance is also clear that an employer is unlikely to be able to comply with the preventative duty unless they have carried out a risk assessment.

Eight-point plan

The EHRC has also published an eight-point plan, a helpful step-by-step guide to complying with the new duty. A few key points to flag include:

• Content of policies: The plan provides fairly prescriptive guidance on what sexual harassment policies should contain, including flagging the employer’s preventative duty and aggravating factors in harassment cases (such as abuse of power). It also requires that policies address third-party harassment, including the fact that workers should report it and the steps which may be taken to avoid a repeat incident (e.g., warning or banning a customer).
• Engagement with staff: The plan emphasises the importance of staff engagement to help the employer understand where the potential issues lie and whether the steps you are taking are working. Such engagement would include conducting regular 1-2-1 interviews with workers, as well as surveys and exit interviews.
• Risk assessment: The plan suggests factors which might increase the likelihood of sexual harassment, which should be taken into account as part of your risk assessment (e.g., lack of diversity, power imbalances and job insecurities).
• Reporting: Employers are advised to keep centralised records of all complaints, formal and informal in order to identify trends.
• Training: There is an emphasis on the role of the witness in preventing sexual harassment in the workplace. The plan requires that training rolled out to staff should extend to both what to do when experiencing and witnessing harassment.
• When complaints are made: It is important to protect witnesses as well as the complainant. The plan also includes a reminder regarding NDA issues (i.e., that they should only be used where it is lawful, necessary and appropriate to do so). The complaint outcome and right of appeal must also be communicated promptly.
• Third party harassment: The plan emphasises the importance of reporting mechanisms, and assessing high-risk workplaces with a particular focus on lone workers.
• Monitoring and evaluation of complaints: Regular evaluation of the steps you are implementing will be useful to ensure those steps remain effective. This could include lessons learned sessions, comparing survey feedback with reported complaints and inviting input from staff networks or trade unions.