ACAS has updated its guidance on sexual harassment to reflect the new ‘Worker Protection (Amendment of Equality Act 2010) Act 2023’, which came into force on 26 October 2024.

We have commented on the new legislation previously here. Among other things, it introduces a positive obligation on employers to take ‘reasonable steps’ to prevent sexual harassment in the workplace. Failure to do so means that an employment tribunal can increase the amount of compensation that an employer which is held liable in a harassment claim must pay by up to 25%.

Furthermore, while the new law stops short of holding employers vicariously liable for third-party harassment (i.e. harassment of employees carried out by individuals who are not employed by the employer), draft guidance from the Equality and Human Rights Commission (“EHRC”) – who are empowered to take enforcement action when there is evidence of organisations failing to comply with their duty take reasonable steps to prevent sexual harassment – states that this duty includes taking steps to prevent harassment carried out by third parties.

The new section of the ACAS guidance on preventing sexual harassment echoes much of the more comprehensive guidance published by the EHRC (which can be found here), and includes the following recommendations:

1. Consider Risks. The guidance states that employers should assess any possible risks in their organisation and ensure that risk assessments consider facts specific to the sector, the type of work, the ways of working, and different roles within the organisation. It also outlines certain higher risk factors that employers should be aware of, including: meeting clients or service users alone; work-related social events with or without alcohol; power imbalances between staff; travelling for work, including overnight stays; and certain characteristics of employees that place them at higher risk such as being younger or having learning difficulties.
2. Consider steps to take. Employers are encouraged to decide what steps are reasonable for their organisation, taking into account factors such as the nature and size of the organisation, the organisation’s resources, whether sexual harassment has happened before, and with whom employees might have contact as part of their work (including third parties).

The guidance includes the following examples of steps that organisations could take to comply with their legal duties:

• making it clear to everyone who works with them, or uses their services, that sexual harassment will not be tolerated;
• encouraging staff to report any incidents of sexual harassment;
• encouraging staff to report situations where they felt at risk, even if nothing happened;
• introducing ways for staff to get help quickly, for example panic buttons or alarms;
• setting standards of behaviour for work social events;
• having someone at senior level to make sure the organisation is taking steps to prevent sexual harassment.

3. Policies and Procedures. ACAS states that employers should consider having a specific policy on sexual harassment and ensure that all employees receive suitable training. A separate section within the guidance sets out what such a policy might look like.
4. Make sure other policies are in line. The guidance stresses that all policies – such as those relating to discipline, social media, and dress code – should “match up” so that there is a consistent message that sexual harassment will not be tolerated.
5. Inform and train staff. A number of examples of the type of training that should be provided are set out, including:

• telling everyone that sexual harassment is not acceptable – for example as part of their induction;
• training everyone on recognising and understanding sexual harassment;
• training managers on how to assess and manage risks of sexual harassment;
• training someone to advise people who are considering making a sexual harassment complaint.

6. Review policies and training. Employers are encouraged to check regularly if policies and procedures for preventing sexual harassment and handling complaints are working, in addition to determining the effectiveness of training.
7. Create the right culture. The guidance states that employers should, among other things, have a clear way to report sexual harassment, and conduct anonymous surveys to understand people’s experiences of sexual harassment at work, keeping a record of complaints in order to “watch for any patterns of unwanted behaviour”.

It also states that the following should be made clear to everyone who works in an organisation:

• sexual harassment is against the law;
• the meaning of sexual harassment and what behaviour is unacceptable at work;
• the organisation will never cover up or ignore a sexual harassment complaint;
• the organisation will not tolerate misuse of power in workplace relationships, for example through seniority or influence;
• how sexual harassment complaints will be handled;
• that staff are encouraged to report sexual harassment;
• if someone carries out sexual harassment, it may lead to them losing their job;
• if someone makes a complaint that is not upheld, they will not face any disciplinary action as long as their complaint was not malicious.

The ACAS guidance can be read in full here.