The Equality and Human Rights Commission (EHRC) has published updated technical guidance to support employers in complying with the new duty to prevent sexual harassment in the workplace. This new duty, which comes into effect on 26 October 2024, requires employers to take reasonable steps to prevent sexual harassment of their workers, including harassment by third parties such as clients and customers.
Key elements of the updated guidance
Reasonable steps and risk assessments
The updated guidance emphasises that what constitutes "reasonable steps" will vary depending on the employer's size, sector, working environment, and resources. Employers are expected to conduct regular risk assessments to identify potential areas where sexual harassment may occur and implement measures to mitigate these risks. This proactive approach is designed to transform workplace cultures by requiring employers to anticipate and prevent harassment rather than reacting to incidents after they occur.
Third-party harassment
A significant aspect of the new guidance is the inclusion of third-party harassment. Although the legal liability for third-party harassment does not extend to employers under the current equality’s legislation, the preventative duty requires employers to take steps to prevent such harassment. This includes notifying clients of the employer's zero-tolerance stance on sexual harassment and incorporating third-party harassment into anti-harassment policies and risk assessments.
Continuous compliance and training
The guidance makes it clear that compliance with the preventative duty is not a one-time effort but requires continuous review and improvement. Employers are encouraged to implement comprehensive anti-harassment policies, provide regular training to all staff, and establish robust reporting and monitoring mechanisms. This includes anonymous reporting channels, staff surveys, and regular reviews of the effectiveness of the measures in place.
Practical steps for employers
Policy development and communication
Develop and communicate policies: Employers should develop a robust anti-harassment policy that includes provisions for third-party harassment. This policy should be widely communicated to all employees and third parties.
Training: Provide regular training to all employees, including managers, on the anti-harassment policy and how to handle complaints. Training should be refreshed periodically to ensure ongoing awareness and compliance.
Risk assessments and monitoring
Conduct risk assessments: Regularly assess the workplace to identify potential risks of sexual harassment. This includes considering factors such as work-related travel, socialising, and the presence of zero-hours contracts.
Monitor and evaluate: Implement systems to monitor and evaluate the effectiveness of the measures in place. This includes tracking complaints, conducting staff surveys, and reviewing trends to identify areas for improvement.
Handling complaints and enforcement
Address complaints promptly: Ensure that all complaints of sexual harassment are taken seriously and addressed promptly. Managers should be trained to handle complaints effectively and take appropriate action.
Prepare for EHRC enforcement: Be aware that the EHRC has the power to take enforcement action if it suspects non-compliance with the preventative duty. This can include investigations, issuing unlawful act notices, and seeking injunctions to prevent further unlawful acts.
Additional considerations
Impact of regulatory standards
Employers should consider the impact of regulatory standards, such as those set by the Financial Conduct Authority, when determining what steps are reasonable to take. The potential disruption of taking a particular step should be weighed against the benefit it could achieve.
Sector-specific approaches
The guidance includes examples of sector-specific approaches to compliance. For instance, a construction company might need to take different steps compared to a hospital, reflecting the unique risks and working environments of each sector.
Continuous improvement
Employers should view compliance with the preventative duty as an ongoing process. Even if initial measures are in place, continuous review and improvement are necessary to ensure that the workplace remains free from sexual harassment.
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