Sexual harassment: could you evidence your actions?

When reviewing your approach to sexual harassment, it helps to consider both the action you take and how you record it. If you’re unsure what evidence to keep, start with the steps already under way in your practice.

Since October 2024, employers have been under a legal duty to take reasonable steps to prevent sexual harassment of their employees. This is a preventative duty. Employers are expected to consider where risks may arise and take appropriate action before an incident occurs, rather than waiting for a complaint to be made.

From 30th October 2026, the Employment Rights Act 2025 strengthens the duty so that employers will be required to take all reasonable steps to prevent sexual harassment. Employers will also be under an obligation not to permit harassment of their employees by third parties, such as patients, suppliers and other visitors.

For employers, this makes evidence increasingly important.

A policy is only part of the picture

An employer may have a detailed dignity at work or anti-harassment policy. However, the existence of a policy does not necessarily demonstrate that appropriate preventative action has been taken.

The Equality and Human Rights Commission (EHRC) guidance makes clear that employers should actively consider the risks within their particular workplace. It states that employers are unlikely to comply with the preventative duty unless they carry out a risk assessment.

That assessment should reflect how the organisation actually operates.

Relevant factors could include whether employees work alone, attend social or networking events, interact regularly with patients, suppliers or other visitors, travel for work, work in environments where alcohol is available, or operate in teams where there are significant differences in seniority or authority.

Employers should therefore be able to show that they have considered their own risks, rather than simply adopting a standard policy and leaving it on the intranet.

What evidence should employers keep?

There is no single document which will demonstrate that an employer has done everything required. Instead, employers should think about creating a clear record of the steps they have taken.

This might include:

• Written risk assessments identifying potential areas of concern

• Action plans showing what measures have been introduced in response to identified risks

• Records showing when policies were reviewed and updated

• Evidence that policies have been communicated to employees

• Training records showing who attended, when training took place and what was covered

• Records of refresher training and training provided to new starters

• Confidential records of concerns and complaints, including informal concerns where appropriate

• Records showing how concerns were investigated and what action followed

• Evidence that trends and recurring issues have been reviewed

• Records of staff surveys, exit interviews or other ways in which employees have been invited to raise concerns

  
  

The EHRC specifically recommends keeping centralised and confidential records of concerns so that patterns can be identified. Its guidance also recommends reviewing the effectiveness of training and providing refresher training at appropriate intervals.

The aim is not to create paperwork for its own sake. The records should demonstrate a continuing process of identifying risks, taking action and checking whether that action is working.

Training needs to be meaningful

Training is another area where evidence matters.

Simply recording that employees completed an online course several years ago may not provide a complete picture of the steps an employer has taken.

Training should help employees understand what sexual harassment can look like, how concerns can be raised and what they should do if they experience or witness inappropriate behaviour. Managers and senior employees should also understand how to respond when concerns are brought to their attention.

Employers should consider whether training remains appropriate as the organisation changes. A growing workforce, new managers, different working arrangements or an emerging pattern of concerns may all indicate that further training or a different approach is required.

Keeping attendance records, copies of training materials and details of refresher sessions can help demonstrate not only that training took place, but also what employees were actually told.

What happens when a concern is raised?

How an employer responds to a concern may be just as important as the preventative measures already in place.

Concerns should be taken seriously and dealt with promptly and appropriately. Records should show the steps taken, the decisions made and any action introduced as a result.

Employers should also consider the wider picture.

A complaint may highlight a risk that had not previously been identified. If so, it may be necessary to update the risk assessment, review a policy, provide further training or introduce additional safeguards.

The key question should not simply be, “Have we dealt with this complaint?” It should also be, “What does this tell us about the risks within our organisation, and do we need to do anything differently?”

Keep the evidence under review

Preventative action should not be treated as a one-off exercise.

The EHRC recommends that employers review risk assessments regularly, take action where new or additional risks emerge and consider an action plan setting out the preventative measures they intend to take and how those measures will be monitored.

This means employers should consider setting regular review dates rather than waiting for an incident to trigger action.

The review does not always need to result in major changes. What matters is being able to demonstrate that the organisation has considered the issue, assessed whether its existing measures remain effective and responded where necessary.

Could you evidence your actions?

If an employer were asked today to demonstrate what it has done to prevent sexual harassment, would it be able to produce a clear record?

Could it show when risks were last assessed? Could it demonstrate what action followed? Could it identify when employees and managers were trained? Could it show how previous concerns influenced its approach?

If the answer to any of those questions is unclear, now is a sensible time to review the position.

Good record keeping cannot replace meaningful preventative action. But where appropriate action has been taken, clear records can help an employer demonstrate it.

Feel clearer about where you stand

Unsure whether your actions and records give a clear picture? Our Oracle HR & Employment Law Service combines practical HR guidance with employment law expertise. We can help you review your approach, identify gaps and decide what needs attention.

Let’s talk through your next steps. Call 0330 088 2275 or email info@buxtoncoates.com.