The new duty on employers to take reasonable steps to prevent sexual harassment in the workplace is now in force (as of 26 October). Remember, the new duty applies to all employers, regardless of size. There is no transition period and there are no exemptions.
There have been various changes since we prepared the previous version of this Relatively Informal Guide. In particular, the eagerly anticipated final version of the Equality and Human Rights Commission’s (EHRC) Sexual harassment and harassment at work: technical guidance (the EHRC guidance) has been released following a brief consultation over the summer months. We say “eagerly anticipated” as, without the guidance, employers had been left almost entirely in the dark as to what they would actually need to do to ensure compliance with the new duty.
Not that the guidance exactly turns the lights on full, if that doesn’t stretch the metaphor too far. Any employers hoping for an easy checklist for compliance will be disappointed. The new paragraphs that have been inserted to update the 2021 version of the guidance do not include a list (comprehensive or otherwise) of steps that employers must take to comply with the new duty. In one sense, this seems to go against a fairly fundamental principle of good law – that those to whom it applies ought to know what they have to do to comply with it.
When pressed on the question, the government’s position has been that the trouble with telling employers what to do to prevent harassment is that they would probably just do it, and that is not the point at all. Underneath that seemingly wilfully contrarian approach, however, lies a more sensible proposition – that no such list of “reasonable steps” can take into account the varying circumstances and risks of every workplace. As a result, there could well be things on a list that some employers simply could not do, and things not on the list that some employers really ought to do. Issuing in effect a series of boxes to tick would remove from employers the obligation to think about the issue of harassment in the context of their own business – its people, its geographies, its clients, its workplaces and so on (as is picked up in the updated guidance).
However, it does appear that the EHRC has taken into consideration some of the feedback received as part of the consultation and has included a more detailed section in the final version, much of which echoes the principles we had suggested employers ought to follow in the previous version of this guide.
As such, the guidance is definitely worth a read. As well as the updated technical guidance, the EHRC has also published an 8-step guide for employers on sexual harassment in the workplace (8-step guide). Again, although this is light on detail, it is helpful in terms of showing what the EHRC will be looking for from employers.
Please click the “Read Insight” button for our Relatively Informal Guide which covers our key takeaways from the updated guidance and our entirely non-statutory, non-official, non-approved set of anti-harassment things to think (and to be seen to have thought) about, which now incorporates our key learnings from the final EHRC guidance and the 8-step guide.
