Key takeaways 

• The EHRC published draft technical guidance for consultation in July 2024, the consultation period having now closed. Subject to any significant changes in the final guidance, there are some important and helpful points to note.
• The EHRC has been clear in its draft guidance that the duty on employers to prevent sexual harassment covers harassment by third parties as well as its own employees.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 However, the draft guidance indicates that the EHRC could bring separate enforcement action for third party harassment (as part of an employer's failure to comply with its preventative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).
• EHRC enforcement can take the form of investigations, action plans, remedial agreements, and even court injunctions. The outcome of enforcement action may be published on the EHRC website.
• The duty to prevent harassment is anticipatory in nature. The EHRC can exercise its enforcement powers where they suspect that the duty has been breached, even if an incident of sexual harassment has not in fact occurred. Employers need to consider the wide range of circumstances in which harassment might take place and how it can be prevented.
• The EHRC draft guidance recommends four key points:
  • Consider the risks of sexual harassment occurring in the course of employment;
  • Consider what steps the employer could take to reduce those risks and prevent sexual harassment of their workers;
  • Consider which of those steps it would be reasonable for it to take; and
  • Implement those reasonable steps.
• In deciding whether a step is "reasonable", the employer's size, sector, working environment and resources will all be relevant factors. 
• A step that is expensive, time consuming and troublesome to implement will not be a reasonable step to take if it will achieve nothing. However, we can expect large employers to be subject to particular scrutiny in relation to the cost benefit analysis that might take place regarding the suitability and effectiveness of a preventative measure. 
• The draft guidance is clear that this duty to consider and take "reasonable steps" should not be a one-off exercise. Employers should continue to review whether there are any further steps it is practicable for them to take, considering issues such as whether there have been any changes in the workplace or the workforce and the availability of new technology such as new reporting systems. As advised in previous alerts, employment tribunals remain critical of employers that deploy "stale" training in their defence of discrimination and harassment claims. 
• In practice, reasonable and proportionate measures will include, at least:
  • Implementing clear sexual harassment policies and making sure staff are aware of such policies;
  • Reviewing the way investigations are conducted and concluded if sexual harassment occurs;
  • Implementing adequate systems for handling complaints and reporting; and
  • Implementing regular training for staff to ensure they understand policies.
• It is also likely that ancillary policies will require review, particularly those concerning alcohol and behaviour at workplace functions. Employers will also want to audit their contracts with third party suppliers to ensure that they conform to their values and codes of conduct. 
• We have set out below one of the examples the EHRC covers in its draft guidance, which has a focus on third party harassment: 
  • "A very small theatre company with limited financial resource considers there could be a risk that some of its workers could be sexually harassed by some colleagues and self-employed consultants, as well as third parties attending awards events which take place on an infrequent basis at different locations. 
  • After consultation with staff, it adopts a zero-tolerance policy to third party sexual harassment, communicates that policy to its staff and encourages them to report any instances of third party harassment that occur. It develops a protocol for how any reports of third-party sexual harassment will be dealt with.
  • Self-employed consultants are informed of the zero-tolerance policy by email when they contract to work with the theatre company. Audiences are advised of the policy in an email when they book their tickets. Notices are displayed in both the public and private areas of the theatre where the company normally runs its productions.
  • The theatre company decides the cost of external training would use a disproportionate amount of its limited budget.
  • Given the company is small, has limited resource and such events are infrequent, it is likely to have taken reasonable steps to prevent sexual harassment of its workers and therefore complied with the preventative duty."
• Stay tuned for our vlog on some further practical examples and suggested steps that employers may wish to take to ensure compliance with the new duty.