In anticipation of the new duty on employers to take reasonable steps to prevent sexual harassment, coming into force on October 26, 2024, the Equality and Human Rights Commission (EHRC) has published the final version of its technical guidance on sexual harassment and harassment at work.

It has been updating the guidance in anticipation of the new law. This follows a period of consultation on draft changes. Alongside its technical guidance, the EHRC has also published an Employer 8-step guide: Preventing sexual harassment at work which is also a helpful (and shorter!) read. 

Whilst the substance of the amendments to the technical guidance remains unchanged from the consultation, the final guidance includes some important additions and clarifications. 

Risk assessments

Importantly for employers, the guidance now makes it explicit that an employer is unlikely to be able to comply with the duty unless they carry out a risk assessment to assess where sexual harassment may arise in its organization. The risk assessment will allow employers to identify “reasonable steps” to put in place to prevent the harassment from arising. This obligation exists regardless of whether you have received allegations of sexual harassment in the past. 

To help employers with this, the guidance now identifies a list of possible (albeit not exhaustive) risk factors to consider. This includes factors relating to the make-up of the workforce (for example, gendered power imbalances – where most junior staff are female and most senior managers / leaders are male), the organization’s culture, and factors relating to the nature of the work being done, for example where there is lone working or night working or social media contact between workers.

Importantly, the guidance now makes clear that employers also need to reflect on their track record of receiving and dealing with sexual harassment complaints: a history of issues, or a lack of appropriate policies and procedures should be treated as risk factors in their own right. 

What are reasonable steps?

Whilst there is no finite list of what will constitute “reasonable steps”, as what is reasonable will differ between organizations, the final guidance now includes a long (albeit non-exhaustive) list of factors to help employers decide whether a step is reasonable.

The guidance also makes the point that employers need to reflect on their track record and culture when determining what steps are reasonable. Where previous steps taken have been shown to be ineffective, employers will be expected to modify their approach and take additional steps. This reflects the dynamic rather than static nature of the duty: employers need to keep the steps they have taken under review and reassess where necessary in light of any complaints received. 

The guidance now contains two examples to illustrate how employers should identify which steps are reasonable for them to take. These are worth reading and make clear that, where there are significant risks or where there have been previous complaints, employers may, in some cases, be expected to take extensive steps to address the problems arising and to keep these under review.

It is clear from the tenor of the guidance and the level of detail in the examples it provides that the EHRC will expect all employers to identify some additional, concrete practical steps they need to take in order to comply with the new duty. 

Engagement with staff

Engagement with your staff will also be key. Indeed the EHRC’s 8-Step Guide (see above) specifically references staff engagement as step two of its eight recommended steps. Of key importance will be for your workers to know how to report sexual harassment, to be aware of your sexual harassment policy and the consequences of breaching the policy. 

Developing an action plan

In a further change from the draft, the final guidance also encourages employers to develop an action plan to address any shortcomings and risks identified by the risk assessment. The guidance says employers should consider publishing this action plan to workers and the public (for example, by putting it on their website). Different employers will have differing approaches to this. 

Enforcing the duty 

In relation to the [up to] 25% ‘uplift’ to employment tribunal awards where the duty has been breached, the guidance clarifies that this will apply to the total compensation award for discrimination, not just the element relating to sexual harassment. This means the potential value of any uplift could be substantial.

Interestingly, the guidance confirms that whilst workers can report concerns that an employer has breached its preventative duty to the EHRC, it states that workers should consider raising their concerns with their employer or trade union before doing so.

Anti-harassment policies 

An ongoing concern has been that the new duty creates a tension between the need for employers to treat all forms of unlawful harassment seriously and the need to comply with the additional requirements regarding sexual harassment specifically imposed by the new duty. 

The final amended guidance includes a paragraph which states that employers should take steps to prevent all forms of harassment. However, it also includes a change to emphasize that employers should not “conflate” sexual harassment with other forms of harassment in their policies.

Employers therefore need to consider whether to have a standalone policy for sexual harassment or to include a separate section on sexual harassment within their broader anti-harassment policy. The latter may be the most appropriate approach for most employers, but some employers may feel that a standalone policy on sexual harassment is one reasonable step they need to take to combat sexual harassment in their workplace. 

The technical guidance provides detailed and prescriptive guidance on what a good anti-harassment policy should cover. Whilst your policy needs to be tailored to your organization’s circumstances, it will be sensible to review your policy against what is set out in the technical guidance to ensure you have covered all the identified points.