Steps to preventing sexual harassment in the workplace need to be complemented by ongoing auditing

The introduction of the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act) on 26 October 2024 is fast approaching, which will require employers to take reasonable steps to prevent sexual harassment at work.

The broad outline of what the Act will require from businesses has been common knowledge for some time now, but in the past few weeks further detail has been announced, including an 8-step guide from the Equality and Human Rights Commission (EHRC) to help employers prevent sexual harassment in their workplace.

The eight steps cover anti-harassment policies, staff engagement, assessing and reducing risk, reporting, training, handling complaints, third-party harassment, and monitoring and evaluating actions. In addition, following consultation, the ‘Guidance: Sexual harassment and harassment at work: technical guidance’ has been updated.

Some of the actions recommended by the EHRC include:

• Undertaking regular risk assessments to identify where sexual harassment may occur and the steps that will be taken to prevent it. Indeed, the EHRC states that an employer is unlikely to be able to comply with the preventative duty unless it carries out a risk assessment.
• Developing and widely communicating a robust anti-harassment policy, which includes third party sexual harassment, noting that a standalone claim cannot be brought for third-party harassment in the employment tribunal.
• 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 timing of the publication only allows a brief period for employers to prepare for the Act coming into force which introduces for the first time a preventative duty in relation to sexual harassment in the workplace. The guidance makes clear though that complying with the new duty will involve ongoing action and should not be regarded as a requirement to do a one-off assessment.

Whilst there is no standalone claim available to an employee where the employer does not take steps to prevent sexual harassment 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 up to an additional 25% compensation on the total award – not just the part that relates to sexual harassment.

The change in legislation also gives the EHRC power to take enforcement action where there is evidence of organisations failing to take reasonable steps to prevent sexual harassment. Enforcement by the EHRC does not depend on an incident of sexual harassment having taken place.

The guidance provides a lot of very good advice and gives helpful examples that employers can implement. However, without carrying out a full audit, employers are unlikely to know which of their policies, procedures and employee behaviours comply with the new duty and which areas they need to improve or fix in order to comply with the new duty. It’s therefore vital that employers conduct internal audits to review their organisation’s current position when it comes to preventing sexual harassment in particular, and harassment more generally (as best practice).

However, auditing should not be a one-off exercise, and should be conducted on a regular basis to ensure that compliance is continually assessed.

Unlike a risk assessment which identifies specific areas of risk where sexual harassment could occur (e.g. home working and control measures to minimise the risks), an audit involves a deep dive into the inner workings of the organisation. This includes reviewing policies, procedures, and training, amongst other things, but also testing them out by following a complaint through to the outcome and learning stages to check that the employer’s identifying, reporting, investigating, and support systems work when needed. If not, corrective actions can then be taken.

A good starting point for an audit would be to take time to review current policies, procedures and documentation (as well as training) to see where any gaps exist in the current way things are done. It is also important that employers understand employees lived experiences in the workplace relating to sexual harassment, to see if there are any personal accounts which may help inform their approach to tackling it in the future.

An audit may not necessarily spell more work for employers before the introduction of the Act. Some may find that their organisations are ahead of the curve, with processes and procedures in place to prevent sexual harassment.

Conducting a full scale, detailed audit of an organisation’s ability to prevent sexual harassment may take some time to do, but given that the necessity to prevent sexual harassment will be a continual requirement for employers, an audit could be conducted alongside the EHRC’s guidance, to ensure the organisation is continually showing up for its employees in terms of protecting them from harassment in the workplace.

Should you need any help, our employment law experts have teamed up with leading change and culture specialists, t-three, and business psychologists, Kiddy & Partners to develop an innovative way to ‘audit’ the way that you deal with Diversity, Equity and Inclusion (DEI) and provide expert guidance to help you make positive progress towards an effective DEI programme that is fit for purpose, which would include looking at your organisation’s ability to prevent sexual harassment in line with the Act.