EHRC publishes checklist and action plan to combat workplace sexual harassment

The Equality and Human Rights Commission (EHRC) has published new guidance on the positive duty to prevent sexual harassment which came into force at the end of October. It comprises a checklist, action plan and monitoring log to assist employers in complying with the duty. We’ll speak to a D&I specialist about the guidance and how employers should use it.

The guidance has been published on the Commission’s website and the opening paragraph sets the scene very well in terms of what the Commission expects. They say:

‘All employers have a duty of care to protect their workers. Policies and procedures alone are not enough to stop sexual harassment from happening in your workplace. Not taking reasonable steps to prevent sexual harassment can have a significant effect on the reputation of your business and the wellbeing and safety of your employees.’

A reminder. The law changed on 26 October 2024, introducing a new preventative duty which requires all employers to proactively prevent sexual harassment in the workplace. 

The guidance comprises a checklist, action plan and monitoring log. The checklist was originally designed for the hospitality sector but, the Commission explains, it can be adapted to suit your  workplace. It covers three main areas: (i) Communicating with staff – how to promote a culture of zero tolerance and let your staff know you take sexual harassment seriously; (ii) Changing the working environment – controlling the physical and social environment that people are working in to make it as safe as possible; and (iii) Working practices – policies and procedures to make sure you know when sexual harassment happens and how it is dealt with.

The action plan should outline the action the organisation needs to take to be able to use the checklist as part of its working practices. So it should cover things like sexual harassment policies – updating and making staff aware of them – making sure employees are fully trained so they know what to do if sexual harassment occurs and making sure that a full and accurate record if kept of any incidents that arise. 

As for the monitoring log, the Commission says it should be used to help your organisation monitor how the checklist and action plan are being used. The guidance suggests that an in-depth log should be taken every quarter to help record the effectiveness of the checklist and action plan in place. 

The new duty to prevent sexual harassment in the workplace was expected to promote deeper-level changes in organisations and that is certainly what we have seen within our own client base. Clients across all sectors have been very proactive and our legal team alongside our D&I consultancy Brook Graham have been kept fully engaged on this issue helping clients implement cultural change within their businesses. 

Brook Graham’s Kate Dodd and Kieron O’Reilly have written about this in their article for Out-Law called: ‘New UK worker protection law to drive workplace culture change.’ Keiron makes the point that when it comes to driving cultural and behavioural changes within organisations there are what he describes as three ‘levers’ to pull to make it happen. Earlier I caught up with Kieron who joined me by video-link to discuss how that translates into practice. First, lever one, setting the tone of behaviour from the top:

Keiron O’Reilly: “The important point is that when we're looking at this change, people are going to only believe it if the message is coming from the top clearly. Now what we've done, and how we've made that happen in the work we are doing with our clients, because they want to do that practically, is we're doing board sessions to bring up to speed the members of the board and including senior leaders as to what that means. So, how do they speak about it and what do they need to ask their teams to do to ensure not only they're meeting the duty to prevent but that they're setting the tone. Specifically that means they can say what we are doing to meet the requirement, how we're meeting it and then also, importantly, the reporting systems they use when things happen because things do happen. So being able to speak confidently, to have that transparency, shows that they're leading from the top and that's what the EHRC would also expect.”

Joe Glavina: “The guidance talks about the sort of steps firms can take and gives the example of setting up a senior management development programme for women to encourage and support women into senior leadership positions. Is that something you’re helping with?”

Keiron O’Reilly: “It is and to be honest that is something we've been doing before. If we look at this more specifically about that second lever, taking action, because the Equality Human Rights Commission, as you say, is asking people to take measures to prevent. So the actions to prevent are coming from the HR teams, the D&I teams, and the others. It's up to senior leadership to give them a mandate, to give them that lever, to put in the policy changes and the actions we're looking at. Now, that particular programme you mentioned is a very positive one, but it's early days. So what most organisations that we're working with at the moment are doing to make sure this happens is they're putting in a compliance plan. So that is, let's look at the first three things that they need to take action on. They need to do their risk assessment. They need to understand where their areas of risk are, and that's very much where we are at the moment. But running alongside that now is the training and that's really important because once the policy is in place, training people so they are clear on the expected behaviours and how to support that, such as active bystander - what do you do if something like this happens? So the early stages that people are taking action on is to put a policy in place and make sure their risk assessment is in place. That’s not just a single one-page document because that won't wash with the EHRC. You need to have a really well thought out risk assessment that leads to a good policy and that you are equipping your people to ensure that those behaviours that they're trying to reduce through the requirements of the guidelines actually happen.”

Joe Glavina: “The third lever you talk about, Kieron, in your article involves training and reporting. Tell me about that.”

Keiron O’Reilly: “So this is really important and I think a lot of organisations have sometimes said to us when we've gone to look at them, we have a whistle blowing system, of course they do, and we also have other channels for reporting. So the first thing is to make sure they're there, but we actually look at how well or often they are used and this is a problem. People don't always feel confident to report stuff, and especially as a bystander in a situation. In particular, and this is to do with harassment, but in particular sexual harassment. We know from all the work we've done in the past, and even if you look at past tribunals and issues, there's a moment when people freeze whether it's happening to them, or whether they're seeing it happen, they don't know what to do. So the confidence in how do I report something that I feel should be reported? How do I take that action safely? People are afraid to do this, to step into that area, because it could potentially, for some people, feel like it's threatening their role or their job, or they feel unsafe. So what we're looking at here, and it goes into the training, so these two go hand in hand I think the reporting of the training. People need to feel confident they can report safely and they need to know how to do it quickly and that builds into the training. This way, we will see a call out of those behaviours and part of this training is to give people that confidence, certainly how to be an active bystander when you see something, what do you do? The reporting mechanisms need to be robust and easy to access and that's part of the training that goes with the new policy.”

Joe Glavina: “The duty came into force on 26 October and speaking to Kate Dodd and some of the lawyers in the legal team they are very busy helping clients with this right now. Have you noticed that? Has client demand spiked?”

Keiron O’Reilly: “Yes, it has spiked. I don't think it's peaked because we're still going along because when we look at the requirement for compliance plan, there are eight major steps and these are what is in the EHRC guidance and I mentioned the first three, your risk assessment, your policy and your training. This was dropped from very great height a very short notice, if we're honest, to a lot of organisations so they are having to scramble to get to where they need to be. The client work we're doing now, me and my team, about 90% of our work since probably mid-October has been all about this. This is all we're doing, and this is the legal and the cultural teams working together. So there's a huge interest in it, and there's a huge importance in it but, yes, it is getting a lot busier. Going in and making people feel safe and certain that they're carrying out the work they need to do to exercise their duty to prevent, is the first thing people are looking for, and we need to give them that confidence. People a bit worried that, oh, 26 October has gone so am I now in a situation where I could be in some sort of threat, or am I going to find myself in any sort of trouble here? The reality is no. As long as you're taking action and as long as you're putting in preventative measures and starting on those eight points that the EHRC guidance is giving you, then you're on your way and that's what we're doing mostly at the moment. It's giving people that reassurance. So those risk assessments are absolutely key. Get those in, and you then know what you're dealing with and your policy follows suit and then you can then put in all the actions. So I talk about three levers, but you can then tell your leaders what they need, you can put in the actions you need by HR, and then you can enable your workforce to start to take the measures that the EHRC would look at if they were to come and do an investigation.”

That guidance from the Equality and Human Rights Commission was published on 12 November and is available from the Commission’s website. We’ve included a link to it in the transcript of this programme for you.

- Link to Out-Law article: ‘New UK worker protection law to drive workplace culture change’

- Link to EHRC guidance