Risk assessments catch firms off guard as new sexual harassment duty approaches

The new duty to prevent sexual harassment is about to come into force and whilst most employers know about it, most are not ready for it. There is a lot of work to do so what should employers be prioritising? We’ll ask a D&I expert that question.

A reminder. The new duty is anticipatory in nature, requiring employers to take active steps to prevent sexual harassment before it happens. It will require the implementation of robust preventative measures with a focus on risk assessment, updated policies, training, and clear and effective reporting mechanisms. Importantly, prevention needs to cover not only what could happen in the workplace but also by third parties, such as clients or customers. That expectation will be new for many employers who may previously only on internal factors, so that’s a big change.

Back in September the Equality and Human Rights Commission published an updated version of its technical guidance. It reminds employers that the law doesn’t list specific steps an employer must take, and that different employers will need to prevent sexual harassment in different ways but, they stress, all employers must take action and no employer is exempt from the duty. To help, given the duty requires a new and different approach, the Commission sets out 8 positive practical steps to illustrate the types of action that employers might take to prevent and deal with sexual harassment in the workplace. They are not an exhaustive list but, they say, implementing these steps will go a long way in terms of what the Commission expects. 

Whilst the Commission’s guidance is a very good starting point, every business is different and will face different risks even within the different parts of its own organisation so it’s definitely not a case of one-size-fits all. Rather, a tailored approach is required where every employer identifies the various risks of sexual harassment across its business and then acts on the findings. In recent weeks we have been working with a number of clients helping them to get ready and that work continues. As you’d expect, it has been a busy time for our employment lawyers and our D&I consultancy, Brook Graham, so let’s hear more about that. Earlier I caught up with D&I specialist Kate Dood who heads up Brook Graham and I asked her whether the surge in requests is because businesses are not ready:

Kate Dodd: “So yes, basically it's been driven by the fact that the updated guidance from the Equality and Human Rights Commission only came out with less than a month before the new duty came into place so employers really are scrambling. Also the new duty has gone further than anyone ever expected it to, essentially, so what it requires is a complete change of mindset for employers because they're now being asked to prevent these things from happening rather than to discourage them, or to deal with them when they do happen. What we're advising clients really is the first step, which is to undertake the audit against the eight steps that the Equality and Human Rights Commission have mandated. So we're asking clients to sit down and to audit against those eight steps and then to look at what needs to be done. Most of our clients are starting with the reviewing of their policy, as you can imagine, reviewing their training, and then also looking at the risk assessment.”

Joe Glavina: “Yes, can I ask you about the risk assessment, Kate, because a lot of HR professionals watching will think to themselves, well, it sounds like a health and safety matter and that's not normally what we do. So who would be conducting it and what does it look like?”

Kate Dodd: “So the risk assessment is the thing that has caught everybody absolutely off guard mainly because it is not something that we've ever been expected to do as employment lawyers, as HR professionals, as D&I professionals, and so the clients that we're talking to about this, or meeting with us, are with representatives from each of those teams basically. We know that we should be taking a lead from how it's done in health and safety but it does need to be different and the biggest challenge here is that there is no precedent. So, the Equality and Human Rights Commission haven't produced a precedent risk assessment. They've told clients, they've told UK businesses, that they need to do one and now those businesses are turning to us, and others, to say how do we do this? It’s a case now of looking really carefully at the guidance, and all of the worked examples and the technical guidance, to work backwards to see what that risk assessment needs to be in order to meet the duty.”

Joe Glavina: “Clearly, Kate, there’s a lot do so what’s the advice to those employers, the majority, who are not yet ready? Is there some sort of priority list as to how they should approach this?” 

Kate Dodd: “So, I think it's all going to be almost impossible, it will be impossible, to fulfil all the steps before the duty comes in. Clients are most definitely starting to look at it and my advice is to do the audit. So, get that audit done against the eight steps, have it time-stamped in some way so that you can show that you've taken action there. The next step is really going to be the risk assessment because flowing from that risk assessment employees are then being expected to produce an action plan. Now we know, ultimately, that the action plan is what the Equality and Human Rights Commission want to see up on company websites so it is going to be important that that risk assessment, and the action plan that flows from it to mitigate those risks, is something that is being done. I would say to employers get planning. It doesn't have to be in place by the 26th of October but you need to be planning for how you're going to meet the duty just in case something happens quite shortly after this duty comes into play.”

The Equality and Human Rights Commission’s guidance was published on 26 September and includes that 8-step guide to preventing sexual harassment in the workplace which Kate referred to. We’ve put a link to it in the transcript of this programme for you.

LINKS
- Link to EHRC guidance: Employer 8-step guide to preventing sexual harassment at work