From Reaction to Prevention: Understanding the EHRC’s New Sexual Harassment Framework

Workplace Investigations and the New Preventative Duty

“Sexual harassment continues to be widespread and often under-reported. Everyone has a right to feel safe and supported at work.”^[1]

Despite increased awareness and evolving workplace standards, sexual harassment remains a prevalent and persistent issue. Accurately assessing the scale of the problem is hampered by significant underreporting. While statistics highlight the magnitude—such as a 2019 BBC survey indicating that 40% of women and 18% of men in the UK have experienced some form of sexual misconduct at work—formal complaints fall far short of these figures. Common barriers to reporting include fears that allegations will not be taken seriously, concerns about reputational damage, embarrassment, or potential career repercussions.

Sexual harassment typically encompasses a wide spectrum of behaviours, such as unwelcome physical contact, sexually explicit jokes or comments, creating a hostile or intimidating environment and inappropriate digital communications.

The Role of Workplace Investigations

Internal investigations into allegations of sexual harassment are a critical mechanism for identifying misconduct and ensuring that appropriate action is taken. In many cases, victims may not wish to pursue criminal proceedings, making employer-led investigations the primary avenue for redress.

Employers must act promptly and professionally to gather evidence, establish facts, and determine appropriate next steps. Investigations should comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures, issued under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992). Key principles of harassment investigations include fairness, transparency, objectivity, and independence. Timely resolution is essential; unnecessary delays may compromise the integrity of the process and allow harassment to continue. Employers who fail to follow the Code may face penalties, including up to a 25% increase in compensation awards if claims are upheld at the employment tribunal.

While not mandatory, appointing an external investigator is often advisable, particularly in cases involving sexual misconduct or where the investigation may touch on systemic issues within an organisation. A prominent example of an organisation adopting this approach is McDonald’s, one of the UK’s largest private sector employers. In response to multiple allegations of sexual harassment, the company engaged external investigators to conduct an independent review. An external party can help ensure impartiality, foster trust among involved parties, and reduce the risk of litigation. Importantly, the individual conducting the investigation should also not preside over any resulting disciplinary proceedings.

The Preventative Duty: A New Legal Framework

In October 2024, the Equality and Human Rights Commission (EHRC) issued landmark guidance  on the new preventative duty on employers to take reasonable steps to prevent sexual harassment in the workplace—including harassment by third parties. The duty is contained in the new s.40A Equality Act 2010. As the EHRC notes, this duty aims to:

“Transform workplace cultures by requiring employers to take positive and proactive reasonable steps to prevent sexual harassment of their workers.”

This represents a significant shift: employers are no longer expected merely to respond to incidents of harassment, but to anticipate and mitigate risks before they materialise.

Defining ‘Reasonable Steps’

Neither s.40A nor the guidance prescribes a definitive checklist of reasonable steps. Instead, an objective test is applied, taking into account the nature of the employer, its workforce, and the specific circumstances of each case.

To assist employers, the EHRC has published an eight-step guide titled “Preventing Sexual Harassment at Work”. This framework outlines recommended preventative actions:

1. Develop an effective anti-harassment policy
   Create a clear, comprehensive policy that defines sexual harassment, provides examples, and distinguishes it from other forms of misconduct.
2. Engage and consult staff
   Involve employees in policy development, foster a culture of openness, and provide training on recognising and responding to harassment.
3. Assess and mitigate risks
   Identify environmental or operational factors that may increase vulnerability (e.g., lone working) and develop action plans to address these risks.
4. Establish accessible reporting systems
   Offer multiple reporting channels, including anonymous options, to encourage disclosures while balancing investigative effectiveness.
5. Provide robust training
   Ensure all staff receive regular training on identifying, preventing, and responding to sexual harassment—both as victims and bystanders.
6. Handle complaints appropriately
   Where conduct may amount to a criminal offence, employers should support employees in deciding whether to involve the police. Investigations should be thorough and timely.
7. Address third-party harassment
   Extend policies to cover interactions with clients, customers, contractors, and others. Clearly communicate a zero-tolerance stance to external stakeholders.
8. Monitor and evaluate interventions
   Regularly review the effectiveness of preventative measures. Conduct “lessons learned” sessions to gather feedback and improve future responses.

Effectiveness of the new duty:

The period around the introduction of the new duty saw a marked increase in the number of sexual harassment enquiries received by Acas compared to 2023. A Freedom of Information request submitted by Irwin Mitchell revealed that such enquiries from both businesses and employees had more than doubled in 2024. One of the key findings was that sexual discrimination disputes reported to Acas reached 7,245 in 2024, representing a 6.2% rise compared to the previous year. 878 (16%) of the sexual discrimination disputes reported to Acas in the nine months prior to February 2025 mentioned ‘sexual harassment’ or ‘harassment’.

It is too early to say whether the new duty has had any impact in curbing inappropriate workplace behaviour. Employers had a year in which to improve internal processes and training before s.40A Equality Act 2010 came into force. The data may suggest that increased awareness, improved training, and clearer definitions introduced in 2024 have empowered individuals to recognise and report behaviours they previously may not have identified as harassment or may have been reluctant to report. The introduction of more accessible and supportive reporting mechanisms may be fostering greater confidence among employees to come forward. Either way, the numbers underscore the importance of sustained commitment to education, accountability, and a culture where safety and respect are non-negotiable.

Nneka Akudolu KC specialises in a broad spectrum of criminal offences particularly serious sexual offences. She has recently joined Chambers Inquests and Inquiries Team.

^[1]Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission