Duty to prevent sexual harassment of workers: final guidance published

The Equality and Human Rights Commission (EHRC) has published the final version of its updated technical guidance (the Final Guidance) to support employers in complying with the new duty to prevent sexual harassment. The Final Guidance has been published one month ahead of the new duty coming into force on 26 October 2024.

Changes have been made to the EHRC’s draft guidance which was published for consultation in summer 2024. For further information, see our Law-Now New duty to prevent sexual harassment in the workplace: EHRC published updated guidance for consultation.

Overall, the Final Guidance is helpful in providing a clearer picture of the standards expected of employers in order to demonstrate compliance with the new duty.  For example, a notable addition is the emphasis on the requirement to carry out sexual harassment risk assessments, which will be new to many employers. If an employer fails to do this, the Final Guidance suggests, they are unlikely to have complied with the preventative duty.   The key message is that a light touch, tick box exercise will not be enough. Anticipate issues and take proactive, preventative action. High standards, time and resources will be required to meet the duty.

Below we summarise what is new in the Final Guidance.

What is ‘reasonable’?

The Final Guidance makes clear that what is ‘reasonable’ will vary from employer to employer, and that every employer’s situation will be different. It remains the case that the Final Guidance does not provide a definitive list of steps an employer should take but outlines the factors that will be relevant in determining what is reasonable.

Previously, the draft guidance mentioned an employer’s size, sector, working environment and resources. Now, the Final Guidance refers to many more factors to be considered when determining reasonableness, such as the impact of regulatory standards (including those set by the Financial Conduct Authority), the potential disruption of taking a particular step weighed against the benefit it could achieve and whether steps taken previously appear to have been effective or ineffective. This emphasises the fact that all employers are expected to take action in relation to the preventative duty. Small employers will not be immune from scrutiny as a result of limited resources or otherwise. 

New examples of sexual harassment at work

The Final Guidance contains new examples of sexual harassment at work. For example, one case study focusses on a large firm in the construction sector, outlining what steps it could take to comply with the new duty. Those steps are comprehensive (covering twelve different steps in total following the launch of an anti-harassment policy) and include sector specific steps (such as instructing managers to discuss any initial site visits with female staff to establish if they are comfortable attending alone or would prefer to attend with a colleague). It can reasonably be assumed from this that all employers will be expected to take a sector focussed approach.

Although the Final Guidance recognises that not all businesses will need to take all steps, it is clear from the new examples that the EHRC’s view on what amounts to reasonable steps is a high bar to meet; and would align more closely with the original concept of “all reasonable steps” which was watered down to reasonable steps during the parliamentary approval process. We may see further changes here; the Labour party has previously indicated that this duty should be strengthened to require “all reasonable steps.”

Introducing a policy and providing sexual harassment training will not be enough, and there is a clear expectation of continuous compliance reviews in relation to risks and steps taken. Compliance with the preventative duty is not static. If mistakes are made, then the Final Guidance emphasises that employers need to take steps to understand what has happened and take remedial action. 

Third party harassment

As per the draft guidance, the Final Guidance still strongly emphasises a requirement for employers to take steps to prevent sexual harassment by third parties, despite the fact that liability for harassment under the equalities legislation does not extend to third parties. However, the Final Guidance now specifically addresses the difference between an employer’s obligations in relation to the preventative duty and legal liability for third party harassment, as follows: “Although the preventative duty includes third party harassment, a worker cannot bring a stand alone claim in the employment tribunal for third party harassment.”

Compliance with the preventative duty will therefore require employers to take steps to prevent sexual harassment by third parties, and that is something that should be addressed in an anti-harassment policy and sexual harassment risk assessments.  Where risks are identified, an employer will need to consider what steps can be taken to mitigate those risks which might include notifying clients of its stance in relation to sexual harassment in the workplace and its zero tolerance approach. For many employers, discussing these matters with clients, especially in a proactive rather than reactive way, will be new and often sensitive territory.

Ignoring complaints

The Final Guidance makes clear that concerns about sexual harassment at work should never be ignored. Later remedial action will not be enough if an original complaint has been ignored. The Final Guidance refers to an example of a ward manager in a hospital failing to take action when sexual harassment by a senior consultant is reported to them by a junior nurse. Managers must be confident to deal with reports that are made to them and understand how to take appropriate action.

Complaints to the EHRC

The Final Guidance now advises workers that they can report a concern that the preventative duty has been breached direct to the EHRC, with the caveat that they should consider speaking to their employer or trade union first. In light of the EHRC’s ability to take enforcement action where an employer has failed to comply with the preventative duty, this could increase the chances of employers being contacted by the EHRC and of the EHRC launching investigations into employer practice, particularly if they receive multiple complaints about a single employer. Although the FT reported that the chair of the EHRC said that they would “not hesitate to take enforcement action where necessary” this will depend on the resources available to the EHRC and its priorities. Sex discrimination and sexual harassment are listed as a priority action in the EHRC’s draft Strategic Plan 2025-28.

Next steps for employers

With one month to go before the new duty comes into effect on 26 October 2024, employers should be identifying what compliance will look like for their organisation, preparing a prevention strategy and putting anticipatory steps into action. As a minimum, relevant policies should be updated, risk assessment processes put in place and steps taken to mitigate any risks identified. Training is another key step, extending to all staff.

However, it is all the additional layers of compliance beyond the minimum that the EHRC is pushing employers to introduce – staff surveys, leadership champions, communications with clients about third party harassment, complaints monitoring and review procedures, anonymous reporting channels, all staff communications etc. – which will require careful consideration and detailed planning.

CMS’ Employment Team can support you with preparing to comply with the new duty including in relation to policy review and changes, training (both in person and eLearning), preparing a prevention strategy, and carrying out sexual harassment risk assessments. Please get in touch with your usual contact in the CMS Employment team to discuss this further.