Sexual harassment and other forms of harassment: preventative approaches mandated at last

If you haven’t yet read this, you really must.

The EHRC’s excellent Sexual harassment and harassment at work: technical guidance (2024) is extremely well written and rightly emphasises the proactive, preventative duty on employers to prevent sexual harassment. 

But it goes further and sets out how legislation now applies (with one exception) to any form of harassment linked to most protected characteristics. https://www.equalityhumanrights.com/guidance/sexual-harassment-and-harassment-work-technical-guidance

Its emphasis is in sharp contrast to the emphasis on supporting individuals to make that characterise much work on equality. The NHS England policy rightly states at para 1.2. “The new Worker Protection (Amendment of Equality Act 2010) Act 2023 creates a duty on employers to take reasonable steps to prevent sexual harassment in the workplace”  but in my view does not sufficiently emphasise the central importance of the anticipatory requirement on employers. In the case of the NHS this is directly linked to the Public Sector Equality Duty.

Status of the Guidance

This guidance is not a statutory Code issued under s.14 EA 2006 but it can be used as evidence in legal proceedings. Showing that the guidance in this document has been followed – or being able to explain why it was not – will be relevant in demonstrating compliance with the Act. The courts have said that a body subject to the duty will need to justify its departure from non-statutory guidance such as this.[1]

The Equality and Human Rights Commission (EHRC), sets out for employers how they should now be

• Developing and widely communicating a robust anti-harassment policy, which includes third party sexual harassment

• Undertaking regular risk assessments to identify where sexual harassment may occur and the steps that will be taken to prevent it

• Being proactively aware of what is happening in the workplace and any warning signs, by engaging with staff through 1-2-1s, surveys and exit interviews

• Monitoring and evaluating the effectiveness of actions.

The Act also includes the ability for compensation in sexual harassment claims specifically to be increased. If an employment tribunal finds a worker has been sexually harassed, it must consider whether the preventative duty has been met. If not, the employer can be ordered to pay an additional 25% (maximum) compensation.

The Technical Guidance starts by explaining what types of behaviour amount to harassment under the Act. These include harassment related to a relevant protected characteristic, sexual harassment, and less favourable treatment for rejecting or submitting to harassment. Conduct can amount to harassment or sexual harassment even if that is not how it was intended.

Duty on employers to prevent sexual harassment of workers

Employers have a positive legal duty to prevent sexual harassment of their workers. They must take reasonable steps to prevent sexual harassment of workers in the course of their employment (the ‘preventative duty’) (s.40A(1)). It explains that

“the preventative duty is an anticipatory duty. It is designed to transform workplace cultures by requiring employers to take positive and proactive reasonable steps to prevent sexual harassment of their workers. Employers should not wait until a complaint of sexual harassment has been raised before they take any action. The duty requires that employers should anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place. However, if sexual harassment has taken place, the preventative duty means an employer should take action to stop sexual harassment from happening again. If an employer fails to take reasonable steps to comply with the preventative duty, there are consequences including enforcement action and a potential uplift in compensation of the employer has failed to take preventative action – this applies to sexual harassment but not to other harassment claims.

Employers must take steps to prevent sexual harassment of workers. The preventative duty includes prevention of sexual harassment by third parties. Therefore, if an employer does not take reasonable steps to prevent sexual harassment of their workers by third parties, the preventative duty will be breached. The consequences of breaching the preventative duty include additional compensation if a claim is successful.

An employer should:

• consider the risks of sexual harassment occurring in the course of employment

• consider what steps it could take to reduce those risks and prevent sexual harassment of their workers

• consider which of those steps it would be reasonable for it to take

• implement those reasonable steps

An employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment which includes a duty to prevent sexual harassment by third parties. . Para 4.43 gives a lengthy example of what a hospital risk assessment might include – check it against your own policy.

Employers are liable for acts of harassment:

• committed by one worker against another of their workers

• committed by one of their workers against a job applicant or former worker

• committed by an agent acting on their behalf against one of their workers, and

• where a failure to deal with harassment of one of their workers by a third party, or by another worker outside of employment, amounts to direct or indirect discrimination (or breach of other legal obligations) (s.40)

Employers will be liable for harassment committed by their workers in the course of their employment unless they can rely on the ‘reasonable steps’ defence set out at paras 2.39 onwards

An employer will not be liable for harassment committed by a worker in the course of employment if they can show that they took all reasonable steps to prevent the harassment (the ‘reasonable steps’ defence) (s.109(4)).. The fact that an employer has taken steps such as an investigation and disciplinary action to deal with the harassment after it has occurred will not be sufficient on its own to avoid liability.

What steps were reasonable for an employer to take will depend on the circumstances of each individual case. For example, an employer who knows that a worker has previously committed an act of harassment may be required to take specific steps to ensure that they do not do so in future.

It is important to consider the impact of any steps that have been taken to prevent harassment and whether they have been effective. Case law has found that the fact that workers have attended anti-harassment training but have not understood it, or have chosen to ignore it, may be relevant in determining whether the reasonable steps defence has been met (Allay (UK) Ltd v Mr S Gehlen: UKEAT/0031/20/AT).

Third party harassment: health and safety at work

The Health and Safety at Work etc. Act 1974 (HSWA) may apply where workers are subject to third party violence while carrying out their work (Para 3.77( . Third party violence means violence caused by any person who is external to the employer such as customers, clients, patients, service users, students and members of the public. Third party violence may take the form of physical or verbal abuse with the effect of causing physical or psychological harm to the worker. (Para 3.78).

Under the Management of Health and Safety at Work Regulations 1999, employers are required to assess risks to their workers including reasonably foreseeable risks of third party violence. Employers should identify reasonably practicable organisational measures to prevent or control risks from third party violence as appropriate. Common measures include the provision of equipment, design of the workplace, instruction or training on personal safety which may involve conflict resolution techniques as well as support arrangements. Further information on violence at work can be found in the HSE leaflet ‘Violence at work: A guide for employers’ (INDG69).

There is an excellent section (4.10) explaining how employers should make an assessment of risks relating to harassment, sexual harassment and victimisation. Existing risk management frameworks, traditionally used in the workplace health and safety context, could be used for this process. Assessments should identify the risks and the control measures identified to minimise the risks. The next section (Para 4.11) is also really helpful in developing a risk assessment. Both should be required reading

4.14 Employers should produce an action plan that sets out what preventative steps they will take to address any identified risks and how that will be monitored. Employers should consider publishing their action plan to workers and the public, for example on their website.

4.17 To ensure that workers’ views are taken into account, anti-harassment policies and other measures to prevent and respond to harassment should be developed in consultation with recognised trade unions, or where there is no trade union, other worker representatives.

4.18 sets out what a good anti-harassment policy (or policies where, for example, an employer has separate policies to deal with sexual harassment and other forms of harassment) will contain. Again required reading.

There is lots more, with sections on:

• Malicious complaints

  
  

• Evaluation of policies 4.31 Employers should not assume that the number of complaints of sexual harassment, harassment and victimisation made is an accurate reflection of the level of harassment happening in the workplace. The gap between the actual level of harassment and harassment that is reported can then be monitored, to determine whether the policy and other steps put in place to encourage reporting are working.

  
  

• Detecting harassment 4.33 Employers should proactively seek to be aware of what is happening in the workplace. There may be warning signs that harassment is taking place, beyond informal and formal complaints. 4.34 Employers should give workers every opportunity to raise issues with them, even where there are no warning signs of harassment, and gives examples.:

  
  

• Training

  
  

• Arrangements for agency workers,

  
  

• Confidentiality agreements (33.38)

  
  

• Addressing power imbalances

  
  

• Responding to harassment

  
  

• Anti-harassment procedure 

  
  

• On Informal resolution but states 4.55 “The procedure should recognise that an informal solution may not be appropriate or may not work in many cases. For example, any informal solution is unlikely to be appropriate in more serious cases, or to work in cases where the alleged harasser is unlikely to accept that they have done anything wrong. It should be clear that the worker can make the matter formal at any stage if they wish to.

  
  

• Requests by workers not to take action even after they have raised concerns.

All in all, it is guidance that everyone in HR and OD, every trade union official and everyone in EDI should read and act on.