Harassment at work: time for change?

The recently issued EHRC Technical Guidance for employers 'Sexual harassment and harassment at work' aims to reflect the law and current best practice, but arguably goes further than this. The Government had previously announced that it planned to introduce a statutory code of practice in this area and has subsequently described this Guidance as a ‘draft version’ of the statutory code of practice.’ While an employment tribunal is not obliged to take this Guidance into account, it may be used as evidence in legal proceedings. It replaces the previous and very short publication: Sexual harassment and the law: guidance for employers issued by the EHRC.

If your organisation is in the process of reviewing their anti-harassment policy, then this Guidance will provide plenty of helpful ideas. It is certainly worth a read to get an indication of the future content of the statutory code of practice. For employers who want to adopt a progressive approach towards workplace harassment, compliance with this Guidance will help employers prevent harassment, and improve their ability to rely on the reasonable steps defence if they do receive a claim.

The Guidance is extremely detailed and runs to over 80 pages. Overall the Guidance contains some helpful clarifications on some of the more difficult parts of the law, and suggests some new approaches. A whole chapter is devoted to preventative measures which can also be used to demonstrate that reasonable steps have been taken to prevent the harassment. The Guidance reiterates having a policy and enforcing it will not be enough to allow an employer to defend a claim on the basis that it has taken sufficient preventative steps.

Key themes in the Guidance include the move towards harassment being reduced via risk assessment and taking steps to prevent third party harassment from customers and clients. Employers who want to check that they are complying with the key preventative measures may want to consult the EHRC’s shorter seven step Guide on preventing sexual harassment which was published on the same day.

We have highlighted the key points to note from the Guidance:

Third party harassment

• There is a real focus throughout the Guidance on employers taking steps to prevent harassment by third parties. The introductory section explains that just under a quarter of respondents to a 2018 survey reported being harassed by customers, clients or service users. Acknowledging that this aspect of the Equality Act was repealed, the Guidance explains that employers may still be liable for the actions of third parties on the grounds of indirect discrimination, or where the reason for their failure to act to prevent an act of third party harassment was because of a protected characteristic. In addition, it recommends that various measures regarding third party harassment should be dealt with in the policy.
• The Guidance also refer to the Management of Health and Safety at Work Regulations where violence is caused by third parties. This includes both physical and verbal abuse with the effect of causing harm to the worker. Under these Regulations employers are required to assess the risk of reasonably foreseeable third-party violence and take steps to prevent or control them.

Steps to prevent harassment

• A whole chapter is devoted to steps an employer can take to prevent harassment which will also discharge the reasonable steps defence in s.109 of the Equality Act 2010. Employers that implement these measures will be in a strong position to argue they are not liable for the actions of a rogue employee if a claim is later raised. This is an area which was ripe for clarity. It is hoped that tribunals will start to apply this approach enabling employers to avoid liability where they have put in place sufficient measures to prevent harassment.

Evaluation of policies

• There is a recommendation that there is an annual review of the anti-harassment policy.
• There is a suggestion that a centralised record of complaints is maintained to assess trends. We saw a similar recommendation in the recently published EHRC guidance on the use of NDAs in discrimination cases. This Guidance also mentions NDAs and states that they should only be used in harassment cases where it is necessary and appropriate to do so.
• The Guidance talks about the role of staff surveys in alerting employers to harassment.
• There is a section on detecting harassment recommending that managers should be on the lookout for warning signs through one to ones and return to work meetings.
• The Guidance suggests that employers consider introducing an online or telephone reporting system. This recommendation was also contained in the Turning the Tables report into sexual harassment from 2018.
• Employers should conduct a risk assessment relating to harassment along the same lines as health and safety risk assessments. The factors that may trigger such an assessment should include – lone working, the presence of alcohol and workers being placed on secondment.

Harassment policy changes

• Alongside the anti-harassment policy, employers should consider a separate strategy document setting out what steps they will take to tackle the different forms of harassment, looking at the different protected characteristics.
• At an informal resolution stage the Guidance recommends that the policy includes a harassment champion or guardian who is “equipped to help them resolve their complaint” – this might include providing the complainant with advice on how to approach the issue directly with the alleged harasser, arrange mediation or speak to the alleged harasser.
• The Guidance suggests that the policy should address third party harassment, highlighting that this may result in legal liability and suggesting that workers are encouraged to report it. Importantly it also states that the policy should explain what steps will be taken to remedy a complaint or prevent it happening again. “For example, warning a customer about their behaviour, banning a customer, reporting any criminal acts to the police, or sharing information with other branches of the police."
• One of the most helpful points refers to an issue that we often come across where an individual comes forward with a complaint and then asks for no further action. The Guidance specifically deals with this point by saying that the employer should encourage the worker to address the issue, and keep the situation under review to see if it has improved. If it does not then the employer should explain that it may be necessary to address the issue both for their well-being and that of their colleagues. The Guidance then lists factors which should be taken into account if the employer decides to go against an employee’s wishes.
• Another difficult issue relates to bystanders and their role in tackling harassment. The Guidance states that the anti-harassment policy should encourage witnesses to come forward and report harassment and take steps to address it.
• It is also common for the complainant to ask what has happened to the harasser. We would normally recommend that where a complaint is upheld, an employer explains to the individual who raised the complaint that appropriate action will follow but that, due to confidentiality issues, no further details can be provided. This Guidance is encouraging employers to go further than this and report outcomes to the complainant stating that “wherever appropriate and possible, if a complaint is upheld then the complainant should be told what action has been taken to address this, including action taken to address the specific complaint and any measures taken to prevent a similar event happening again in the future". It goes as far as suggesting that employers should take steps in advance to enable disclosure of the outcomes by reviewing policies, disciplinary procedures and privacy notices.
• Where the parties require to work together after a complaint the Guidance states that the employer should nominate someone to manage the reintegration of all those affected by the allegation and investigation – this may include support and counselling but also mediation.

Training

To ensure the effective implementation of all the new approaches mentioned above - particularly the focus on preventative measures and a shift in responsibility towards employers for eradicating harassment - the Guidance emphasises the need for training on the anti-harassment policy and process which is tailored according to roles and seniority. For example, those with customer facing roles should know how to respond to third party harassment from customers.

Comment

Parts of this Guidance will be helpful for employers. Certain aspects may not prove to be popular particularly informing a complainant about steps taken with the harasser. This would involve an overhaul of privacy notices and policies to advise individuals in advance that disciplinary outcomes may be disclosed where harassment is involved. Decisions will need to be made on how many of the preventative steps that are listed in chapter 5 are reasonable to implement in your organisation.

Days after the publication of this Guidance, the Equalities Office announced that they were conducting a survey of workplace harassment to build a picture of how many people are affected and where. They also confirmed that they will publish the response to the consultation on workplace harassment in the spring. By way of reminder, the consultation covers a variety of measures to tighten up the law on sexual harassment, including the possibility of an enforceable preventative duty, the reintroduction of third party harassment as a distinct legal right, the extension of the law to volunteers and an extended time limit for discrimination claims. We will publish a further update when there are any developments on the consultation response.