Of course, the obvious benefit will hopefully be a reduction in sexual harassment in the business. But as well as avoiding the potential uplift in compensation, employers could achieve a full defence to sexual harassment claims by showing that they have taken ‘all reasonable steps’ to prevent harassment. In this way, the new act could be seen as protection for employers as well as employees. 

 

 

It is important to fully engage with preventing sexual harassment. A tick-box exercise is unlikely to be sufficient. 

 

Responding to incidents of sexual harassment will not be enough. Employers must be able to demonstrate that the duty was complied with before an incident of sexual harassment occurs. 

 

The law does not list specific steps that employers must take. However, the EHRC has released guidance and suggested steps to help employers comply with their duty. 

 

 

A policy tailored to your specific workplace is likely to be more impactful than a one-size-fits-all. If you don’t already have a policy, it is time to create one. If you do have one, it is still sensible to review it in case updates are needed. 

 

The EHRC suggests outlining what sexual harassment is, what the law says about harassment, and potential aggravating factors such as abuse of power. You could also explain your duty as an employer and who is protected by your policy. Make a clear statement of your intent to tackle sexual harassment in the workplace. 

 

Outline the process for employees to report incidents of sexual harassment, and the potential consequences for those who harass others. For workers this will likely include disciplinary measures and dismissal, but you will also need to consider how to respond to third parties. 

 

 

Staff often have a better understanding of problem areas and the workplace culture, especially what happens when managers are not around, so ask for their help assessing what measures are needed. Some staff might find it easier to provide feedback privately or anonymously, so consider different ways of inviting input. 

 

 

Assess your workplace to identify any risks, considering factors such as: 

 

 

 

 

 

Once you have identified the risks, consider what safeguards can be put in place to prevent harassment. For example, if you identify a culture of drinking and pressure to socialise, you could plan regular team building events that don’t involve alcohol. If you have a gendered power imbalance, consider measures to improve diversity in senior roles. If you identify that people in certain roles find it harder to report concerns, consider why this is and how you can offer further support. 

 

 

Create a simple process for staff to raise concerns. Remember that this is not just for those who have been harassed - staff who have witnessed harassment should also be encouraged to report it. 

 

The EHRC suggests that some employers might benefit from an independent reporting service. For smaller businesses, this could be as simple as appointing an external HR provider. As this is a sensitive subject, you could appoint more than one dedicated contact so that staff have a choice of who they feel most comfortable speaking to. 

 

Some people may not come forward unless there is an option to do so anonymously. Such reports should still be encouraged. While you probably won’t be able to take action against the perpetrator, it will give you a more accurate overview of harassment in your company. It is also a good idea to keep centralised records to spot trends, but be careful to maintain confidentiality. 

 

Once you have a clear process for reporting sexual harassment, update your grievance and whistleblowing policies to include it. 

 

 

Training is essential to make employees aware of your policies and help them understand your processes. Explain your legal duty and how you will implement it, highlighting any changes to your policies. Explain how staff should raise concerns, how you will handle complaints, and the consequences of unacceptable behaviour. Remind staff that it is important for witnesses to report unacceptable behaviour even if they are not the victim, and that they should report third-parties as well as colleagues. 

 

Training should cover what constitutes sexual harassment in the workplace, giving clear examples of behaviour that is and isn’t acceptable. Examples tailored to your industry or workplace often have more impact. 

 

Consider specific training for those who will handle complaints. This can help them understand how best to support their colleagues, and where to get support themselves when dealing with upsetting complaints. 

 

As well as regular refreshers, you might re-train your staff whenever you update your policies and practices or after incidents of harassment. Review your training regularly and consider how you can improve it – especially if sexual harassment is still a problem. 

 

 

It is important that investigations are quick and confidential. It may be helpful to update your disciplinary policies. 

 

Communicate with both parties to keep them up to date on what is happening. Consider how you will offer support to the alleged victim, especially if they want to report it to the police. You could also signpost to external resources. 

 

You may need to consider measures to protect staff during investigations, such as keeping the parties separate by changing work patterns or location. Depending on your work, you may also need to consider whether the person accused of harassment should be around clients or service users. But be careful not to make assumptions or imply guilt before fully investigating. You still have your obligations around unfair dismissal, constructive dismissal, and discrimination, so it is important follow a fair process. 

 

The EHRC also raises the issue of non-disclosure agreements (NDAs). In the past businesses have been accused of misusing NDAs to cover up incidents of sexual harassment and assault. An NDA which tries to prevent staff reporting a criminal offence cannot be enforced by the court, but a lack of awareness allowed NDAs to be misrepresented and misused. 

 

Use NDAs with caution, and never to prevent a victim reporting a crime or getting support. Think carefully before including an NDA and, if you must include it, be sure that the employee gets clear, thorough legal advice. 

 

 

Although you aren’t liable for third-party harassment, you can be liable for failing to take reasonable steps to prevent it. Your policies and training should all make very clear that you will not tolerate harassment from clients, customers, suppliers or any other contact. 

 

Your level of control over third parties is different to that over staff. You cannot rely on training or disciplinary measures, so you will need different approaches. 

Consider how to communicate that harassment is not tolerated. For customers, this could be as simple as placing notices in customer-facing locations. When dealing with other businesses, you could include a contractual requirement that they have policies and training in place to prevent sexual harassment. In long-term relationships, you could require their staff to complete your training. 

 

You should also clearly communicate how you will respond to third-party harassment. This could include banning customers from your premises, ending your business relationship with contractors, or reporting workers from other firms to their employer. 

 

 

It is vital to actively monitor workplace conduct to respond to poor behaviour. 

 

Record and review complaints to identify patterns or problem areas. If you do have incidents of harassment, hold a debrief about what more you could have done to prevent the harassment and how you can prevent similar behaviour in future. Review policies, procedures and training regularly, and after any changes in the workplace. 

 

Ensure staff have the chance to provide feedback on your practices and the reporting process and be sure to act on this insight. Regular anonymous surveys are an easy way to seek input. 

 

You could also include a question in exit interviews. While it will be too late to engage the member of staff leaving, this may be when they feel most free to speak out.