Earlier this month, the Equality and Human Rights Commission issued new guidance on sexual harassment and harassment at work. The guidance is very comprehensive, running to some 82 pages, but if you are responsible for drafting your company’s harassment policies or for handling such complaints in the workplace, you should still take a look at it to ensure that your policies and practices are in line with the EHRC’s recommendations.
At the moment the guidance is non-statutory, which means that there is no direct legal sanction on employers if they don’t comply with it. Clearly, however, it is good practice for employers to do so and I refer only to “direct” sanction above because it would be very naïve not to expect material disregard for it not to be held against you on the margins in any Tribunal litigation.
According to the EHRC’s website, the guidance is expected to become a statutory Code of Practice “in due course”. Presumably this will be after we know the outcome of the government’s consultation on sexual harassment at work and what changes are likely to be made to the Equality Act as a result of this. The Acas Code of Practice on the far broader questions of disciplinary and grievance procedure runs to just 17 pages including foreword and back cover, so a fair bit of redrafting of the guidance before it becomes a formal Code seems likely! As and when it does, then such disregard will definitely be held against you, probably on issues both of liability and quantum.
The guidance doesn’t deal just with sexual harassment – it covers all forms of harassment at work that would be covered by the Equality Act 2010. It recommends that employers have different policies to deal with sexual harassment and harassment related to protected characteristics or, if they have only one policy, that they clearly distinguish in it between the different forms of harassment so that the reader is clear as to its application to his/her particular complaint.
What is potentially most useful is the section on the steps that employers should be taking to prevent harassment and protect their staff. Under the Equality Act 2010, an employer will not be liable for harassment committed by its staff if it can show that it took all reasonable steps to prevent such behaviour – the so-called “statutory defence”. Until now, however, there has been very little guidance on what steps an employer must take to be able to rely on the statutory defence, only a number of very fact-specific cases of limited wider application. The new guidance seeks to fill this gap by giving positive examples of what steps can be taken to prevent harassment.
Most of the suggestions are fairly obvious, but at least now employers can have a better idea of whether what they are doing is in the right ball-park. Clearly, they are not obliged to take every step in the guidance – what it is reasonable to do will vary depending on things such as resources, size, risk factors, etc., but they should review the steps set out in the guidance and consider which of these things they do already and what further steps it would be practicable for them to take. Remember that the statutory defence refers to “all” reasonable steps, not just “some” or “those which aren’t too difficult”.
The EHRC has also published a separate shorter guide for employers specifically on preventing sexual harassment at work. This guide is much less detailed (just 8 pages) and focuses on the 7 steps the EHRC says are crucial for employers to take if they want to be able to prevent and respond to sexual harassment in the workplace:
- Develop an effective anti-harassment policy: The guide sets out the things this should contain. Not all of them may be covered by your current policy so it is worth taking a look at this (and the more detailed guidance set out above) to see if you need to make any tweaks.
- Engage your staff: All workers should be made aware of how they can report harassment, your harassment policy and the potential consequences of breaching the policy.
- Assess and take steps to reduce risks in your workplace: Consider factors that might increase the likelihood of sexual harassment and the steps that can be taken to minimise them.
- Think about reporting systems: Ensure that your workers know what they can do if they experience or witness harassment. Consider using a reporting system that allows them to raise an issue anonymously if they wish.
- Deliver training: Again, something that employers will be doing already if they are serious about tackling this issue.
- Know what to do when a complaint is made.
- Know what to do if dealing with sexual harassment and third parties: The guide recommends that harassment by a third party, such as a customer or client, should be treated just as seriously as that by a colleague, even if the same legal repercussions do not necessarily follow.
We will be posting a series of blogs to expand on these individual recommendations over the next few weeks. Don’t touch that dial!