It may come as a surprise to some that until the end of last month, UK employers had no legal duty to take reasonable steps to prevent sexual harassment in the workplace.
It is, therefore, welcome that such a duty is now stipulated in the 2023 Worker Protection Act. A major limitation is that the duty applies only to university staff and not to students, but the Office for Students’ new regulatory requirements in this area, which come into force in August 2025, will apply to students in England. Moreover, the detail of guidance from the Equality and Human Rights Commission (EHRC) on the new duty makes some progressive points that should make human resources, health and safety, and data protection leads across UK higher education sit up and take notice.
Perhaps most importantly, the new duty should help to put to rest the idea that a formal, quasi-legal investigation is the only way an institution can take action on disclosures or rumours of sexual harassment. Time and time again in my research and campaigning in this space, I have heard of people disclosing sexual harassment or assault from staff only to be told: “We can’t do anything unless you put your name to a formal complaint. And, no, we can’t keep this confidential from the person you are reporting.”
The EHRC guidance states that where “concerns” have been raised, it “would likely be reasonable for the employer to take steps to investigate and ensure it does not happen again”. We at The 1752 Group have been arguing for such investigations to be part of sexual harassment policies for some time, and in 2020 we produced guidance on how to conduct them.
This point is finally being taken up by the sector. In 2021, an investigation into Trinity Hall, Cambridge stated unequivocally that the idea that “action cannot be taken in the absence of a formal complaint” was “wrong”. Subsequently, Cambridge amended its dignity at work policy to include a provision on “university-instigated investigations”. While there are challenges to gathering enough evidence in the absence of a named complaint, the emerging consensus is that this should be attempted wherever possible.
However, an investigation may not be what the reporting party wants or needs. Or, as the guidance notes, if a report is fully anonymous there may not be sufficient evidence to start one. The guidance sets out a range of options for employers to prevent sexual harassment in such situations.
Perhaps the biggest shift from previous guidance is the stress on the importance of risk assessments. It suggests that “existing risk management frameworks, traditionally used in the workplace health and safety context, could be used” to assess risks relating to sexual harassment. This softly-softly approach is unlikely, by itself, to incentivise employers to embed sexual harassment and violence prevention within health and safety workstreams. But this is clearly the direction of travel, and proactive institutions will get started on this sooner rather than later.
A further preventive measure outlined is the use of data. Currently, some UK universities have systems for anonymous or informal reporting by students – such as Culture Shift’s “Report and Support” tool – but not all of them allow staff to use them because of concerns about storing personal data – as well as about potential backlash from free speech activists. The EHRC guidance provides a clear rationale for all universities to embrace anonymous reporting by staff as well as students, urging them to “consider introducing an online or externally run telephone reporting system that allows workers to make complaints on either a named or anonymous basis”.
Moreover, the guidance is clear that employers should document informal as well as formal reports, no matter where the information comes from. This data should be reviewed regularly to “identify trends and appropriate action to tackle” sexual harassment. This is a step beyond where most universities are at, to my knowledge, requiring them to take proactive steps rather than placing all the burden, risk and responsibility on individual reporting parties.
The new guidance also notes employers’ responsibility to avoid “passing the harasser” on, reminding existing employers of their “duty not to provide a misleading or inaccurate reference to a potential employer”.
Luckily, there’s a ready-made solution for this, which we have been urging universities to join. This is the Misconduct Disclosure Scheme, which sets out a framework for employers to commit to sharing information internationally about ongoing or upheld disciplinary cases. If a critical mass of universities joined, it would be a game changer.
Of course, the new duty will make a difference only if universities implement it. As the guidance notes, the EHRC has the power to take enforcement action, so governing bodies should ask for updates on their universities’ progress, and details of steps taken should be circulated in staff communications.
Nevertheless, it is possible that universities may need extra encouragement to embrace this more proactive approach. Staff unions, gender-equality researchers and other concerned parties should take this opportunity to request updates on how their employers are addressing it. We will all hope for good news about the timely implementation of proactive systems that make a meaningful contribution to reducing the incidence of sexual harassment.
Anna Bull is a senior lecturer in education and social justice at the University of York, and a founding member of The 1752 Group, which campaigns to end sexual misconduct in UK universities.
