Employers expected to take reasonable steps to prevent sexual harassment

Recent media coverage of allegations involving Gregg Wallace, underscore the challenges employers may face in managing third-party behaviour. While the specifics of the case remain unconfirmed and allegations are denied, the complaints shine a light on the importance of putting in place and enforcing robust preventative measures to mitigate such issues and risks. Employers should consider these situations when drafting and enforcing policies, particularly for roles or events involving significant interaction with external parties or clients.

The new duty

The Equality and Human Rights Commission (ECHR) have published guidance on the ‘reasonable steps’ employers should take to prevent sexual harassment at work.

As of 26 October 2024, employers must now take reasonable steps to prevent sexual harassment occurring at work. The Worker Protection Act 2023 changes section 40 of the Equality Act 2010 to include the new preventative duty.

As well as this, where a case of sexual harassment is proven, the tribunal will penalise the employer if they are also found to be in breach of the new duty, by increasing the employee’s compensation by up to 25%.

What are reasonable steps?

For employers, there is no exhaustive list of steps which need to be taken and what will be considered reasonable will be decided by a tribunal on a case-by-case basis. Therefore, recent guidance released by the ECHR gives employers the best possible idea of the steps which should be considered.

“Reasonable steps” or “all reasonable steps”

The Worker Protection Act was originally drafted to require that employers take “all reasonable steps” to prevent sexual harassment, but this was later diluted to a lower threshold of taking “reasonable steps”. 

However, the Employment Right Bill is set to reinstate the higher threshold of taking all reasonable steps. If an employer has missed just one step to prevent sexual harassment which would be considered reasonable for them to have taken, the employer may face enforcement action from the ECHR or claims by the employee. The exact nature of how this will be enforced is not yet clear and we can expect more guidance in due course. For now, the importance of considering these issues and being ready with policies, procedures, training and guidance is key to mitigate the risks of claims and promote a safe and legally compliant workplace.

Employers should diligently follow the guidance below with careful consideration that the expected standard to prevent sexual harassment is going to be raised once again. Some of these changes are set to be introduced no earlier than 2026, however thorough preparations now will ensure a more efficient and cost-effective review of preventative measures next year.

Anti-harassment policies

Whilst an employer may already have in place some form of anti-harassment policy, it is now essential this addresses the prevention of sexual harassment specifically. Some key policy provisions suggested by the Equality and Human Rights Commission (ECHR) include:

Set out the preventative steps the employer is taking.

• Site disciplinary action for those committing sexual harassment.
• Allegations should be considered on a case-by-case basis, considering aggravating factors such as the seniority of the perpetrator.
• Provide a definition of sexual harassment and include examples to promote clarity.
• Include a procedure for how complaints will be handled to reassure victims and deter perpetrators, particularly with regards to third-party harassment.
• The effectiveness of the policy should be reviewed at regular intervals.

Communication with workers

The guidance recommends promoting open communication amongst employees, to ensure employers have a good understanding of their work environment and that employees have a good understanding of the sexual harassment policy. This may be done via one-to-one’s, surveys or workshops for example. These will indicate the effectiveness of the preventative steps being taken and assist in identifying if changes need be made.

Risk assessments

A thorough risk assessment that is routinely reviewed and considered will demonstrate that an employer is being proactive in identifying potential circumstances whereby sexual harassment may take place. Putting in place appropriate preventative measures will demonstrate that they have acted on their assessments and used the results to guide decisions on what steps need reviewing or adding.

The guidance considers environmental factors which should be considered when conducting risk assessments, including settings with power imbalances, lack of diversity, lone or night working, customer-facing work and external or social events.

Reporting systems

Ensuring that a reporting system allows for anonymous complaints to be raised will encourage complainants to come forward and deter perpetrators. Employers should keep thorough records of complaints raised and ensure these are kept confidential. An effective reporting system will assist employers in identifying any patterns which should in turn be considered during risk assessment reviews.

Training

Proactive and high-quality training for all members of staff should educate employees on how to identify sexual harassment, what to do if they experience or witness it and how to manage any complaints raised. Specialised training may be exceptionally important in work environments where third parties are frequently in contact with employees. To improve the impact of training, they should offer refresher training at regular intervals.

Addressing a sexual harassment complaint

The guidance recommends some key action points:

• Immediately take steps to acknowledge and make plans to resolve a complaint. However, this does not mean making rushed decisions as to whether harassment took place, which should be subject to proper investigation.
• Consider how the complainant wants the issue resolved.
• Maintain confidentiality.
• Protect the complainant and witnesses from being victimised during investigation.
• Where applicable, ask the complainant if they want to report the allegation to the police.
• Be cautious when using confidential agreements, also known as NDAs.
• Maintain effective communication with the complainant.
• Inform the complainant of any appeals process.

Sexual harassment by third parties

The ECHR specifically highlights that the prevention of third-party sexual harassment should be taken as seriously as internal harassment cases. Whilst these situations are much more difficult to control, the guidance recommends having reporting mechanisms and continually assessing high-risk work environments where employees may be left alone with third parties.

Evaluate and evolve

Employers should regularly evaluate the effectiveness of the steps they have in place to prevent sexual harassment. Ad hoc reviews should be made where changes arise in the work environment, work force or work type for example.

Employers are expected to have an accurate understanding of the level of sexual harassment in their workplace. Regularly collecting data will assist employers in gaining this understanding. In particular, the ECHR recommends reviewing informal and formal complaints data to identify trends and appropriate action. Anonymous surveys can be used to identify barriers to reporting sexual harassment and collaboration with worker networks or trade unions can help keep employers informed.

After having addressed a sexual harassment complaint, employers should ensure they set aside time to reflect on where their actions could have been improved. Where changes are identified, changes should always be implemented.

The ongoing situation with high-profile cases such as the one involving Gregg Wallace may serve as a reminder that no organisation is immune from scrutiny, and the legal expectations surrounding sexual harassment are shifting towards a more preventative approach.

Useful resources

• Employer 8-step guide: Preventing sexual harassment at work | EHRC (equalityhumanrights.com)
• EHRC publishes updated workplace sexual harassment guidance ahead of change to law | EHRC (equalityhumanrights.com)
• Sexual harassment and harassment at work: technical guidance | EHRC (equalityhumanrights.com)