UK: EHRC updates technical guidance on sexual behavior

in short

The new obligation on employers to take reasonable steps to prevent sexual harassment by employees will come into effect on 26 October 2024. Following a summer consultation, the Equality and Human Rights Commission (EHRC) has published eight-step guidance on preventing sexual harassment. Workplace Harassment Issues and Further Updates to Technical Guidance on Sexual Harassment and Workplace Harassment

• In the words of the EHRC, the new duty “aims to change workplace culture by requiring employers to take proactive and reasonable steps to prevent workers from sexual harassment”. It will sit alongside existing safeguards but require employers to take a more proactive approach to identifying and addressing risks.
• The guidance makes clear that an employer’s duty to prevent sexual harassment covers harassment by third parties and their employees. Strictly speaking, an employee cannot bring an independent claim to an employment tribunal for third party harassment unless the employer’s failure to act is itself discriminatory. However, the guidance indicates that the European Commission on Human Rights can take separate enforcement action against third-party harassment (as part of an employer’s failure to comply with its prevention obligations).
• For more information about the new responsibilities, please see our vlog A ‘Deep Diversity’ video blog series from the Baker McKenzie employment team in London.

For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie contact.

Technical guidance

An updated version of the technical guidance will help identify reasonable steps that may need to be taken. For example, it suggests that relevant factors may include the likely effectiveness of particular steps, and that employers may consider the time, cost and potential disruption of taking particular steps and weigh this against the benefits that may be realized.

It also notes that compliance with relevant regulatory standards may affect whether a step is considered reasonable and whether concerns about sexual harassment have been raised with the employer. If any measures have proven ineffective in the past, alternative actions should be explored.

It also adds two new detailed example scenarios (a large company in the construction industry and a hospital). These examples illustrate the process that the EHRC expects employers to go through when undertaking a risk assessment and provide useful examples of reasonable steps that may be transferable. The guidance also makes clear that employers are unlikely to comply with their prevention obligations unless a risk assessment has been carried out.

eight point plan

The European Commission on Human Rights has also published an eight-point plan which is a useful step-by-step guide to complying with the new obligations. A few key points to mark include:

• Policy content: The Scheme provides fairly prescriptive guidance on what a sexual harassment policy should contain, including pointing out employers’ prevention obligations and aggravating factors in harassment cases (such as abuse of power). It also requires policies to address third-party harassment, including who employees should report the behavior and steps that may be taken to avoid repeat incidents (such as warning or banning customers).
• Interaction with employees: This program emphasizes the importance of employee engagement to help employers understand where potential problems lie and whether the steps you are taking are effective. This involvement includes regular 1-2-1 interviews with employees, as well as surveys and exit interviews.
• risk assessment: The plan identifies factors that may increase the likelihood of sexual harassment and should be considered as part of a risk assessment (e.g., lack of diversity, power imbalance, and job insecurity).
• Report: Employers are advised to centrally record all formal and informal complaints so that trends can be identified.
• train: Emphasizes the role of witnesses in preventing sexual harassment in the workplace. The plan requires training for employees to cover what to do if they encounter and witness harassment.
• When a complaint is made: Protecting witnesses and complainants is important. The program also includes reminders about NDAs (ie, they should only be used where lawful, necessary and appropriate). The outcome of the complaint and the right to appeal must also be communicated promptly.
• third party harassment: The plan emphasizes the importance of reporting mechanisms and assessment of high-risk workplaces, with a particular focus on lone workers.
• Complaint Monitoring and Assessment: Regularly evaluating the steps you are implementing will help ensure they remain effective. This may include learning lessons learned, comparing survey feedback with reported complaints and inviting input from employee networks or unions.