UK: new EHRC guidance on harassment at work

New technical guidance on sexual harassment and harassment at work has been published by the Equalities and Human Rights Commission.  It is anticipated that at some point the guidance will become a statutory code of practice, which would mean that tribunals would be obliged to take it into account in relevant cases;  before then, tribunals will not be obliged to do so but claimants are still likely to refer to it in evidence.  Employers should review their equal opportunities/harassment policies and processes in light of the guidance, particularly once it is given statutory status, as significant updates are likely to be required.

The guidance sets out and discusses the law on harassment and victimisation and, in section 5, includes over 20 sides of advice to employers on taking steps to prevent and respond to harassment.  These will be relevant where an employer seeks to establish the defence that it has taken all reasonable steps to prevent harassment or victimisation by its workers, for which it would otherwise be vicariously liable.

The EHRC also published a separate short guide for employers setting out seven key steps:
• develop an effective anti-harassment policy
• engage staff with regular one-to-ones and have an open door policy
• assess and mitigate risks in the workplace
• consider using a reporting system that allows workers to raise an issue anonymously or in name
• train staff on what sexual harassment in the workplace looks like, what to do if workers experience it and how to handle complaints
• act immediately when a harassment complaint is made
• treat harassment by a third-party just as seriously as that by a colleague.

Key points to note in the technical guidance include:

• employers should have different policies to deal with sexual harassment and harassment related to protected characteristics, or have one policy that clearly distinguishes between the different forms of harassment;
• employers should consider preparing separate strategy documents setting out what measures will be taken to tackle the different forms of harassment, taking into account the differing causes and risks of occurrence;
• policies and other measures should be developed in consultation with recognised trade unions or other worker representatives;
• detailed requirements for a good anti-harassment policy include making clear that disciplinary action could be taken in respect of conduct at work-related socials, on social media, or unconnected with work where relevant to suitability to carry out the role; it should also note that aggravating factors such as abuse of power will be taken into account and should include clear examples relevant to the employer's workplace to illustrate each type of harassment;
• other policies and procedures should be reviewed to ensure consistency and appropriate culture, including disciplinary, IT, dress codes, performance objectives (for example, performance objectives should expect that managers deal appropriately with harassment complaints);
• employers should consider publishing their policies on an easily accessible part of their external-facing website - this is suggested both as a means of ensuring sick employees/ non-employee workers can access the policy and to demonstrate the employer's commitment to transparency and tackling the issue;  if not publicised externally they should be as freely available as possible to all workers, for example published on an intranet or a hard copy given to everyone, and policies should be shared with entities that supply workers;  staff should also be reminded of the policy at appropriate times;
• policies should be reviewed annually and their effectiveness evaluated, for example by keeping a central record of complaints at a level of detail that allows trends to be analysed (subject to data protection safeguards) and comparing this with data from staff surveys, lessons-learned sessions, and exit interviews to identify if there is a gap between the actual level and reporting of harassment;
• employers should be proactive in identifying warning signs that harassment may be occurring and provide every opportunity for workers to raise issues, including considering the introduction of an online or externally run telephone reporting system permitting anonymous or named complaints;  this should enable an employer to take action to address a matter, even where there may not be sufficient evidence to start an investigation due to the anonymity of the complainant (for example, this action could be issuing a reminder of the policy to workers and monitoring the area of the business affected);
• in addition to workplace-relevant training for all workers and managers, some workers should be specifically trained in providing support to complainants;
• employers should carry out risk assessments for harassment and victimisation which might take into account factors such as power imbalances, job insecurity, lone working, the presence of alcohol, customer-facing duties, local or national events raising tensions, lack of diversity, and secondment of workers;
• employers using agency staff should agree with the agency in writing the allocation of responsibilities for handling complaints, including updating each other and providing clear guidance to the worker;
• employers should consider what action can be taken to reduce power imbalances by, for example, taking steps to reduce feelings of isolation, addressing under-representation of workers, ensuring that decision-making at senior levels is more representative of different groups, and providing sufficient support for workers at all levels;
• employers should consider extending the statutory right to a companion to cover meetings to investigate a harassment complaint and allowing persons other than colleagues or trade union representatives as a companion; complaint investigators should have appropriate expertise and avoid inappropriate lines of questioning;
• the guidance discusses when to override a complainant's request not to take action;
• the guidance suggests that complainants should be informed of the outcome of action against an alleged harasser and that data protection concerns should not prevent this if the employer makes its policy clear (this advice should be treated with caution, particularly prior to the guidance becoming a statutory code).

Of course what is reasonable in terms of the 'reasonable steps defence' will depend on the circumstances, including the size and nature of the employer, the resources available to it and the risk factors which need to be addressed within the particular employer or sector. Employers should consider what steps they have taken to date and what further steps it is practicable for them to take.  This should be regularly reviewed, considering issues such as whether there have been any changes in the workplace or the workforce and the availability of new technology such as new reporting systems.

The Government Equalities Office has also launched a survey of 12,200 people to gather data on the prevalence of sexual harassment and ensure government policies focus on the right areas identified by victims. The Government consulted on possible reforms in this area last year and is due to provide its response this spring.