The EHRC’s guidance confirms that:

• The new duty is an anticipatory duty, requiring employers to take positive and proactive reasonable steps to prevent sexual harassment of their workers;
• A worker cannot bring a claim against their employer about a breach of the preventative duty but an employment tribunal can increase compensation awarded in a sexual harassment claim if it is not complied with;
• The new duty also requires employers to take reasonable steps to prevent sexual harassment of workers by third parties. The definition of “third parties” is broad and includes (without limitation) customers, clients, self-employed contractors or freelancers, service users, patients, students, friends and family of colleagues, delegates at a conference and members of the public;
• A worker cannot bring a standalone claim in the Employment Tribunal for third-party sexual harassment (or any form of third-party harassment);
• All employers must take reasonable steps to prevent sexual harassment of their workers in the course of employment. What is reasonable will vary from employer to employer. Whether or not an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances of each situation. Certain factors may be relevant in deciding whether a step is reasonable, including the size and resources of the employer and the sector it operates in, as well as the cost incurred in taking a particular step against the potential benefit; and
• The preventative duty does not depend upon an incident of sexual harassment taking place for the EHRC to take enforcement action.

The EHRC has also published an eight-step guide setting out the following practical steps that employers can take to prevent and deal with sexual harassment in the workplace:

• Develop an effective anti-harassment policy, which states that sexual harassment will not be tolerated and is unlawful, and which addresses third-party harassment.
• Engage staff by conducting regular one-to-ones, running staff surveys and exit interviews, and having open-door policies.
• Assess and take steps to reduce risk in the workplace, including undertaking a risk assessment which considers factors that might increase the likelihood of sexual harassment (e.g. power imbalances, a lack of diversity in the workforce, socialising outside of work, and a culture of alcohol consumption) and the steps that can be taken to minimise them.
• Using a reporting system (such as an online or independent telephone-based service) that allows workers to raise issues anonymously and keep centralised, confidential records of all concerns raised.
• Conduct regular training for workers, including managers and senior staff, on what sexual harassment in the workplace looks like, what to do if they experience or witness it, and how to handle any complaints of harassment.
• Act immediately to resolve complaints, taking into account how the worker wants it to be resolved and respecting the confidentiality of all parties.
• Take steps to prevent harassment by third parties, including putting reporting mechanisms in place or assessing high-risk workplaces where staff might be left alone with customers.
• Monitor and evaluate the effectiveness of the steps you put in place, for example by reviewing formal and informal complaints to see if there are any trends or particular issues.

ACAS’ guidance is broadly similar to the EHRC’s guidance. It provides examples of sexual harassment – including, for example, making sexual comments or jokes about someone’s sexual orientation or touching someone against their will – and emphasises that what some people might consider as joking, ‘banter’ or part of their workplace culture can still be sexual harassment.

It also emphasises that certain staff might be at higher risk of sexual harassment, including younger staff (such as apprentices and interns) and people with learning difficulties.

Finally, the guidance recommends that employers check and ensure that all relevant policies match up – for example, an organisation’s social media policy should also make it clear that online sexual harassment will not be tolerated, including on personal devices.

Although the guidance from the EHRC and ACAS is not legally binding, it is likely to be instructive in Employment Tribunal cases. Therefore, it is important for employers to take note of the guidance, in particular the EHRC’s helpful eight-step guide for employers.

Employers should also continue to be mindful of their ongoing obligations under the new duty – this means committing to reviewing the steps they have taken to comply with the new duty at regular intervals, monitoring the effectiveness of those steps and implementing any changes that may be required. It is important to note that complying with the new duty is an ongoing obligation and will not be satisfied merely by taking appropriate measures in the coming months and leaving it there.