Employers must “step up and protect staff from harassment” – new EHRC guidance is calling for change

The #MeToo movement continues to be a high-profile topic.  With increasing scrutiny of employers’ conduct and practice, the Equality and Human Rights Commission has issued new technical guidance to employers (available here) on preventing and responding to sexual and other forms of harassment. 

The guidance aims to reflect the law and current best practice.  It has been described as a ‘draft statutory code of practice’ so, whilst there is no legal sanction for non-compliance, it can be used by employers and workers as evidence of the appropriate standards in legal proceedings.   It will come in handy for those employers in the process of reviewing and updating their anti-harassment policy, or for those who want to take proactive steps to tackle harassment (sexual, or otherwise) in the workplace.  Compliance with the guidance can also be relied on to show reasonable steps were taken to prevent harassment, a defence open to employers under s.109 of the Equality Act 2010 in tribunal proceedings.  So, despite its lack of statutory recognition, it would be short-sighted of any employer to disregard its recommendations.

At 80 pages, the guidance is lengthy, and covers the following:

• Effective policies and procedures, including regular reviews and evaluations
• How to identify harassment, including reporting systems
• How to respond to formal and informal harassment complaints, and how to deal with situations where the complainant does not want formal action to be taken
• How to prevent harassment
• How to prevent further harassment and victimisation once a complaint has been made, and
• The steps to take once a complaint has been dealt with, including the level of information provided to the complainant.

Preventing harassment – guidance for employers

Chapter 5 of the guidance is arguably the most relevant to HR professionals and is devoted to the steps an employer can take to prevent harassment, which will also discharge the reasonable steps defence.  Some of the key recommendations include:

• Policies should be reviewed annually.  As part of this review, it is recommended that any themes arising from evaluation and monitoring and feedback received through means such as staff surveys and lessons-learned sessions should be considered.
• Maintaining a centralised record of complaints in sufficient detail to allow trends to be analysed.  Similar recommendations were made in the EHRC guidance on NDAs in cases of discrimination.
• Conducting assessment of risks relating to harassment and victimisation, similar to the risk management framework that should already be in place in a health and safety context.  The factors triggering an assessment may include power imbalances, job insecurity, lone working and the presence of alcohol.
• Introduction of a telephone hotline/reporting system.
• Delivery of training – tailored to each role and seniority –which explains what sexual harassment looks like and what to do if an individual experiences it. 
• Nominating a member of HR or other nominated worker as a harassment ‘champion’ or ‘guardian’ who is trained in providing support to individuals who have experienced harassment.  

The guidance reinforces the need for employers to be active in tackling harassment.  It should be remembered that merely 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, a point reiterated in the guidance.   It is clear that employers must take further steps, as indicated in the recommendations above.

What next?

Last year’s focus on sexual harassment and the #MeToo movement, fuelled by high profile cases, has led the Government to increase its focus on harassment in the workplace.   This guidance provides a useful glimpse of what is yet to come.  Legislative changes introducing new restrictions on confidentiality clauses in employment contracts and settlement agreements are also in the pipeline.  This follows the publication of a consultation response on the issue last year, and the report of the Parliamentary Select Committee on Women and Equalities where Fox Williams employment partner Jane Mann’s evidence to the Committee was heavily cited.  There is no update yet as to the timing of this legislation, and  we will update you as soon as there are new developments.

Further information

If you have any questions in relation to this article or the guidance, please do not hesitate to contact a member of the employment law team at Fox Williams.