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The Equality and Human Rights Commission (EHRC) has published substantial new guidance on sexual harassment and harassment at work, setting out detailed recommendations that employers should consider following to prevent and deal with such behaviour.
The EHRC's technical guidance sets expectations and best practice for eliminating and dealing with harassment in a post #MeToo world. It offers clarity and detail on issues ranging from legal obligations to carrying out investigations. The previous EHRC guidance on this topic was just six pages long, so the fact that the new version is more than 80 pages shows the seriousness with which the issue is taken nowadays.
In the context of research showing how harassment remains prevalent and often goes unreported, the guidance puts the onus on employers to be more inquisitive about what is going on in their workplaces, rather than simply having policies and dealing with complaints. It also aims to reflect the modern world of work, with references to:
- social media harassment;
- power abuse;
- the General Data Protection Regulation (GDPR); and
- the availability of new online reporting systems.
While the main focus is on sexual harassment, the guidance covers all forms of harassment that are unlawful under the Equality Act 2010.
Much of the guidance explains the legal tests for different types of harassment and victimisation and when employers can be liable for these. The following areas are particularly notable.
Reasonable steps defence
An employer is not liable for harassment committed by a worker in the course of their employment if it can show that it took all reasonable steps to prevent the harassment. The guidance emphasises that the steps must have been taken before the harassment happened, although how an employer responds to a complaint may help to show that the issue has been taken seriously. The guidance states that an employment tribunal may expect an employer to have taken a certain step even if it would not have prevented the harassment in a particular case. Using the example of training all managers on an anti-harassment policy, the guidance points out that a step which is likely to be effective in preventing harassment might be reasonable even if it is expensive, time consuming or troublesome.
Harassment by third parties, including clients
The guidance acknowledges that there is currently no explicit legal duty to prevent third-party harassment (its re-introduction is currently under consultation). However, the guidance is emphatic in stating that employers can be liable for third-party harassment under various other legal provisions, including:
- indirect discrimination, where a policy of failing to deal with such issues particularly disadvantages women;
- direct discrimination, if complaints by some groups are treated differently from complaints by other groups; and
- constructive unfair dismissal claims.
The guidance is also clear that employers should in any event be doing what they can to tackle this issue.
Steps employers are expected to take
The guidance explains the practical steps which the EHRC thinks employers should be taking or at least considering. Some of the notable recommendations include the following.
Social media and other out-of-work scenarios
Employers should discipline employees for harassing colleagues on social media. Policies should cover this and say that employees can be disciplined for any out-of-work harassment that calls into question their suitability to carry out their role.
Be careful of what is said about malicious complaints
The guidance warns that policies often overemphasise malicious complaints and thus it must be clear that workers will not be disciplined just because their complaint is not upheld. They should face disciplinary action only if it is found that the allegation:
- is false; and
- was made in bad faith (ie, without an honest truth in its belief).
Be transparent about outcomes
Employers should take steps to ensure that they can tell complainants about the outcome of their complaints, even though this may involve disclosing personal data about the accused. Privacy notices and other documents may need reviewing to cover the disclosure of disciplinary outcomes.
Overseas reach
Policies should cover overseas sites, subject to local law.
Publishing policies on website
Employers should consider publishing their policies on their external-facing website (for easier access and to make a public commitment about eliminating harassment).
Complaints database
The guidance recommends that employers create a GDPR-compliant central record of all harassment complaints whose level of detail allows trends to be analysed.
Detecting harassment
Employers should proactively seek information on what is happening in the workplace, scanning for warning signs and carrying out regular staff feedback surveys.
Online reporting
Employers should consider setting up reporting systems which allow anonymous reports to be made. Such systems could:
- capture complaints that would otherwise go unreported;
- encourage complainants to come forward; and
- allow some form of action even if a full investigation is impossible (due to the anonymity of the complainant).
Investigate all complaints
The guidance includes details on how to carry out investigations. It also tackles the issue of historic complaints – a key issue brought to light by #MeToo – stating that employers should investigate them rather than assuming that they cannot find evidence because the events occurred a long time ago.
Train workers
Employers should train all workers in the different types of harassment and victimisation, including on how to address third-party harassment where applicable, and ensure that the training is refreshed at regular intervals.
Guardians
Employers should ensure that there are trained workers who can support a complainant through the process of making a complaint. These could be members of the HR team or nominated guardians.
Power imbalance
Employers should reflect on where the power imbalances fall in their organisation and consider what they might do to address this.
Carry out sexual harassment risk assessment
An important new feature of the guidance advises that existing risk-management frameworks traditionally used in the workplace health and safety context could be used for harassment assessments. Indeed, the risk of sexual harassment should arguably already be part of a health and safety risk assessment.
Assessments should identify the risks and the control measures identified to minimise the risks. Risk factors may include:
- power imbalances;
- job insecurity;
- lone working;
- the presence of alcohol;
- customer-facing duties;
- particular events that raise tensions locally or nationally;
- lack of diversity in the workforce; and
- workers being placed on secondment.
While the new EHRC guidance is not legally binding, it can be taken into account by employment tribunals and used by claimants in evidence. It will probably be referred to regularly in harassment claims. The guidance also lays the groundwork for a new statutory code of practice, the draft of which is expected to be published for consultation in 2020. The code is likely to mirror the content of this guidance in many respects but will have greater legal force. Employers would be well advised to start preparing by benchmarking their current approach to harassment against the guidance.
