The preventative duty

The EHRC guidance makes it clear that the preventative duty is an anticipatory duty. Employers should not wait until an incident of harassment has happened but anticipate scenarios where its workers may be subject to sexual harassment in the course of employment and take preventative action.

Equally, the guidance emphasises that this is a continuing duty. Putting reasonable measures in place is just the starting point and employers should monitor, review and refresh and/or amend the steps they are taking on an ongoing basis.

What are reasonable steps?

• There is no prescribed minimum. The nature of the obligation to take reasonable steps to prevent sexual harassment depends on a range of factors, including the size and resources of the employer. However, it is clear there are some steps which most employers will be expected to take:
• carry out a risk assessment and then an action plan to gain an understanding of where, why and how incidents could occur and any underlying cultural issues that may increase the risk of harassment. Risk factors may include employees commonly socialising outside of work or traveling regularly on business. Risk assessments should be reviewed and updated regularly
• have in place effective and well-communicated policies and practices which aim to prevent harassment and victimisation. A carefully considered anti-harassment policy will make it clear that harassment will not be tolerated and the policy should also include an effective procedure for receiving and responding to complaints of harassment and sexual harassment
• provide harassment and victimisation training to all workers, ensuring it is refreshed regularly
• be proactively aware of the workplace with a view to detecting warning signs of harassment, such as sickness absence, changes in behaviour, and comments made in exit interviews
• ensure that employees have access to a range of channels for reporting harassment, including holding informal one to ones, return to work interviews, exit interviews, staff surveys and online or telephone reporting systems deal with any allegations of harassment promptly, efficiently and sensitively.

What are the consequences of non-compliance?

1. If an employer fails to take “reasonable steps” to prevent sexual harassment, there are two potential consequences. enforcement action: the EHRC has the power to take enforcement action against the employer, including the issue of an unlawful act notice which requires the employer to prepare an action plan setting out how it will remedy any continuing breach of the law and prevent future breaches.
2. Increase to compensation: in the event of a successful claim of sexual harassment, the employment tribunal may award an uplift to the compensation awarded to the claimant of up to 25% where it finds the respondent employer has failed to comply with the preventative duty.

More broadly than this, failing to comply with the duty may indicate there are cultural issues which remain unaddressed, which could in turn lead to reputational damage for the business.