Sexual harassment and harassment at work – new guidance published

The Equality and Human Rights Commission (EHRC) has published guidance on sexual harassment and other forms of harassment at work. The guidance aims to help employers, workers and their representatives understand the extent and impact of harassment in the workplace, the law in the area and best practice for effective prevention and response.

The guidance has been published as a result of, among other things, the EHRC’s report “Turning the Tables”, which we reported on in 2018. Three-quarters of people who responded to the EHRC’s call for evidence had experienced sexual harassment at work. Nearly all of those were women. The report made a number of recommendations to the Government aimed at tackling the issue.

The EHRC notes that the scale of harassment that they and others have found is “disturbing” and that the effects of harassment on individuals are damaging, long-lasting and profound, and that they harm employers. It calls on employers to “take action to change culture and behaviours and eradicate harassment in the workplace.”

This new guidance reminds employers that they are responsible for ensuring that workers do not face harassment in the workplace; and that they should take reasonable steps to protect their workers. What is reasonable will vary from employer to employer, but no employer is exempt.

Practical steps suggested for employers to consider in order to prevent and respond to harassment include:

Having effective policies and procedures in place. The policies should be well communicated, monitored and regularly reviewed. The guidance sets out would be included in a good anti-harassment policy.
Taking proactive steps to be aware of what is happening in the workplace so that harassment can be detected. This includes being alert to warning signs that harassment is taking place, beyond informal and formal complaints; and giving workers every opportunity to raise issues.
Providing training for workers to ensure that they know what harassment involves; what to do if they experience it; and how to handle complaints of harassment.
Assessing risks relating to harassment to identify the risk and the control measures identified to minimise the risk. Factors may include, for example, power imbalances, job insecurity and lone working.
Promoting a culture of transparency, where workers feel empowered to speak up about discrimination. The guidance reminds employers that confidentiality agreements must only be used where it is lawful to do so.
Addressing power imbalances, for example by ensuring that decision making at senior levels is more representative of different groups, and providing sufficient support for workers at all levels.
Dealing with complaints of harassment promptly, efficient, and sensitively in line with an anti-harassment procedure. This should include informing workers about how to raise issues informally or formally. Guidance is included on how to handle complaints by workers who then ask the employer not to take the matter further.
Considering whether to report the matter to the police if an individual makes a complaint of harassment that may amount to a criminal offence; and providing the individual with support.
Preventing further harassment during an investigation into a formal complaint of harassment. This may include limiting contact between the complainant and the alleged harasser, for example by redeploying the alleged harasser to another part of the employer or a different site, arranging working from home, or removing duties from the alleged harasser that bring them into contact with the complainant. It could also include suspension, depending on the circumstances.
Taking further steps after the process has ended following a complaint of harassment. This could include arranging support and counselling for the parties, arranging mediation or arranging training.

Comment

The guidance is not a statutory code. While an employment tribunal is not obliged to take this guidance into account in cases where it thinks it is relevant, it may still be used as evidence in legal proceedings.

However, an employer can be responsible for harassment carried out by its workers unless they can show that they took all reasonable steps to prevent that behaviour. Employers should familiarise themselves with the guidance and consider whether they need to review their policies and procedures on dealing with harassment in the workplace.

We can provide bespoke equality awareness training in your workplace for managers. Contact us to find out more.

17 January 2020

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