It should be a principle of good law, you would think, that you know what you have to do to comply with it. So why, when asked to provide that clarity in advance of the positive duty on employers to take reasonable steps to prevent sexual harassment coming into force in October, has the government refused to do so?
When pressed on the question, the government has so far said that the trouble with telling employers what to do to prevent harassment is that they would probably just do it, and that is not the point at all. Underneath that seemingly wilfully contrarian approach, however, lies a more sensible proposition – that no such list of “reasonable steps” can take into account the varying circumstances and risks of every workplace. As a result, there could well be things on a list which some employers simply could not do, and things not on the list which some employers really ought to do. Issuing in effect a series of boxes to tick would remove from employers the obligation to think about the issue of harassment in the context of their own business - its people, its geographies, its clients, its workplaces and so on.
The Equality and Human Rights Commission has issued guidance on this which is quite a good read in places. Although the original intention had been for the government to issue supporting notes to the legislation (between us, these were are probably unlikely to add anything terribly useful), the plan is now that the EHRC will instead issue updated versions of its code and guidance. Although the stated aim is that these will be released and subject to a six-week consultation period over the Summer, with the announcement of an early General Election being called and all the other distractions facing the government at present, the probability of the final versions being issued long enough in advance of the October implementation date to allow employers to act on them is pretty limited.
When the law changes, the obligation will be immediate. There is no transition or preparation time. So come 26 October, you have either taken the reasonable steps required or you haven’t, and if you haven’t, you are immediately exposed. Acting now, or as a minimum, being seen to think now about whether you need to act, is a likely pre-requisite of compliance with this new duty.
We can no more provide an exhaustive list of things to do than can the government. However, keep in mind that the requirement here is to take reasonable steps to prevent harassment, not all reasonable steps. Even if you miss one or two possible minor measures at the margins, therefore, that will not necessarily put you in breach.
Click on the Read Full Insight button to read our entirely non-statutory, non-official, non-approved set of anti-harassment things to be seen to have thought about by October.
