FAQs on the new duty to prevent sexual harassment: what do employers need to know?

What are the consequences of failure to comply with the new duty?

Whilst a failure to prevent sexual harassment will not give rise to a standalone claim, breach of the preventative duty can result in the Employment Tribunal awarding an uplift of up to 25% to a claimant's total compensation for breaches of the Equality Act 2010. Given there is no statutory cap on discrimination compensation, the impact of this uplift could be significant.

The EHRC also has the power to take enforcement action against the employer if it suspects that the preventative duty has not been complied with. Such enforcement powers include powers to: investigate an employer; issue an unlawful act notice; enter a legally binding agreement with the employer to prevent future unlawful acts; and ask the court for an injunction to restrain an employer from committing an unlawful act. 

Whilst we are focusing on the legal repercussions and compliance, employers should also be aware of potential negative publicity, adverse media attention, as well as a damaging impact on workplace culture that any failure to comply with the preventative duty could bring.

What makes a step "reasonable"?

There is no strict definition of what constitutes "reasonable steps" and it will depend on a number of factors. Potentially relevant factors, outlined in the EHRC's updated Technical Guidance on Sexual Harassment and Harassment at Work, include:

• the size and resources of the employer;
• the nature of the working environment;
• the sector the employer operates in;
• the risks present in that workplace;
• the nature of any contact with third parties, for example, the type of third party, the frequency of contact and the environment;
• the likely effect of taking a particular step and whether an alternative step could be more effective;
• the time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve;
• whether concerns have been raised with an employer that sexual harassment has taken place (in such a situation it would likely be reasonable for the employer to take steps to investigate and ensure it does not happen again);
• compliance with any relevant regulatory standards (for example, standards set by the Financial Conduct Authority); and
• whether steps taken appear to have been effective or ineffective, for example, if a further incident of sexual harassment occurs after steps have been taken, this may indicate that additional and / or alternative action should be considered.

What are the "reasonable steps" employers can take?

This is a key question with which employers are grappling. The EHRC have published an eight step guide for employers to help them comply with the preventative duty. Whilst these steps are not exhaustive, they illustrate the types of action and reasonable steps employers can take, and we have used them to summarise what employers should do now – and how we can help.

1. Risk assessment

Undertaking a risk assessment should be the priority for compliance with the preventative duty. It should involve considering working practices and identifying where and when sexual harassment may take place, auditing policies and training, considering exit interviews, looking at resignation and grievance patterns in teams, and putting steps in place to address issues and prevent recurrence.

2. Develop an effective anti-harassment policy

This may involve reviewing existing policies and updating them to ensure they are fit for purpose, including considering what aspects are implemented in practice and what needs changing to comply with the preventative duty. 

3. Engage your staff

Make sure there are processes in place, and staff are aware of them, concerning:

• how they can report sexual harassment;
• the company's sexual harassment policy; and
• the consequences of breaching the policy.

4. Reporting

Consider using a reporting system to ensure that issues are raised and keep appropriate records to help identify any trends and take prompt action.

Consider designating a "Safe Space Champion" in each workplace or team as a first port of call and as a safe person to raise issues with.

5. Training

Offer regular and refresher training sessions to all workers at all seniority levels to ensure they are aware of what sexual harassment in the workplace means, what to do if they experience it or witness it, and how to handle any complaints of harassment, as well as addressing third-party harassment. This training should ideally be face to face and involve participation to ensure it is meaningful, effective and not criticised as a stale, tick box exercise.

We can design and deliver bespoke training for you and your workplace to comply with this requirement which will assist in defending any claim.

6. Taking action in response to a harassment complaint

We would recommend putting in place a process of what to do when a complaint is made, including having a clear investigation process. For example, considering how the worker wants the matter to be resolved, consideration of a team move of the alleged harasser, consider any criminal liability, and consider communication of the outcome of a complaint and any appeals process. Implementing a thorough process shows intent and should have a positive effect of employees speaking up in future and preventing recurrence.

We can assist in designing a response plan and an investigation steps plan to assist with your prevention strategy.

7. Dealing with harassment by third parties

Employers should prevent harassment by third parties (e.g. customers, clients, patients, suppliers) by carrying out risk-assessments as well as putting reporting mechanisms in place.

8. Monitor and evaluate actions

Monitor, review and evaluate the steps you have put in place on an ongoing basis. This could be looking at any complaints to identify trends, conducting staff surveys, and regular refreshing of training.

Is the landscape likely to change again in the future?

The Employment Rights Bill published on 10 October 2024 aims to raise the bar of the preventative duty so that employers are required to take "all reasonable steps" to prevent sexual harassment, rather than just "reasonable steps". The Bill would also make employers liable for third party harassment unless the employer took all reasonable steps to prevent it, and this would cover all harassment, not just sexual harassment. These are just proposals at this stage, and not law, so for now employers should proceed on the basis of the new duty which comes into force from 26 October 2024 as outlined above.

We are happy to assist you in your preparations for complying with this new duty, including the specific assistance mentioned on risk assessment guidance, providing training, reviewing policies, or implementing investigation processes. Please do feel free to get in touch with your regular Stephenson Harwood contact.