Time to rethink workplace sexual harassment – New EHRC Guidance highlights how the ‘compliance bar’ has been raised

6th February 2020

No employer wants to find themselves on the receiving end of a harassment complaint or even worse an employment tribunal claim.  Put simply, they are bad for business not least because of the potential reputational damage, but also the legal expense, management time and issues with stakeholder and employee relations.  #Metoo has placed the issue of sexual misconduct and harassment firmly in the spotlight, bringing about a palpable shift in societal and workplace norms. The take-away message is that the bar is set much higher for employers seeking to comply with their legal obligations to prevent and tackle workplace harassment.  This has been brought into ever-sharper focus by new Guidance issued in January 2020 by the Equality and Human Rights Commission (EHRC). Read on to learn more.

Bad news stories

We all know the impact that a damaging media story can have on an organisation’s reputation, not to mention its ability to attract and retain the best talent.

For example, in 2019, a City employee who claimed that one of her employer’s directors sexually harassed her, when he repeatedly invited her back to his hotel room after a work event in Spain, received a well-publicised settlement of £270,000.  She alleged that her employer failed to take reasonable steps to prevent the director from carrying out acts of harassment and therefore failed to protect her from workplace harassment.  She also alleged that the employer failed to respond appropriately after she raised her complaint about the incident. The employer decided not to suspend or dismiss the director.  Instead it took action by reducing his bonus for the year and banning him from drinking at work events for twelve months.

Ordinarily, if a claim is settled, you would expect a condition of any settlement to be a full confidentiality clause (or “gagging” clause). But the employee with the complaint may not be willing to agree to one. As was the case here, where unusually, her settlement agreement reserved her right to talk about her claim, including to the press.

Harassment claims continue to come to light including in areas as diverse as Westminster and Hollywood.  No workplace is immune. If #Metoo tells us anything, it is that there is no room for complacency.

Changes to the law?

The Government has signalled that it intends to introduce tougher legislation on workplace harassment.  It consulted during 2019 on proposed new measures including:

• Introducing a mandatory duty on employers to prevent harassment at work.
• Increasing the time limit to bring a harassment Employment Tribunal claim from 3 to 6 months.

As part of this drive, the Equality and Human Rights Commission (EHRC) is expected to publish a statutory Code of Practice on harassment during 2020.  This Code will have similar ‘teeth’ to the ACAS Code of Practice on disciplinary and grievance procedures in that Employment Tribunals will be obliged to take an employer’s non-observance of the Code into account when ruling on a claim. In short, failing to comply with the Code could be enough to sink an employer’s defence in an Employment Tribunal.

New Guidance

Meanwhile, the EHRC has just published new Technical Guidance on sexual and other harassment at work which is described as, “the authoritative and comprehensive guide to the law and best practice in tackling harassment”.  Employers ignore it at their peril as whilst the Guidance does not have the statutory status referred to above, it can still be used as evidence in Tribunal proceedings.  In practice, Employment Tribunals are likely to expect employers (especially those with sizeable workforces/an HR function) to demonstrate a sound working awareness of the Guidance and compliance with its recommendations where practicable.  Conversely, non-compliant employers are likely to find that it is used as a stick to beat them with during Tribunal proceedings.

The Guidance is comprehensive, leaving no stone unturned in terms of what employers should be doing (and it includes many examples) to understand their legal obligations and adopt best practice to unearth, prevent and respond appropriately to harassment complaints.

It is impossible to summarise all the recommendations in this article, there are just too many.  However, by way of example, the section titled, ‘Taking steps to prevent and respond to harassment’ includes the following points.  These fix the bar for good practice substantially higher than many may imagine;

• Anti-harassment policies should include clear examples to illustrate each definition of the different forms of harassment (i.e. sex, race, disability, age, religious belief etc).
• Workers should be trained on what harassment in the workplace looks like, what to do if they experience it and how to handle any complaints.
• Policies should specifically address the issue of ‘third party harassment’ (including from customers, as, for example, was seen in the complaints about the President’s Club), including what steps will be taken to prevent it, to remedy it and if it has happened, to prevent it happening again. This is particularly so for external-facing workforces where staff should receive regular training on how to deal with and report any instances of harassment.
• IT, communications, social media policies and the like should specifically address harassment (and cross-refer to harassment policies) including where harassment takes place on personal devices.
• Employers should consider publishing their anti-harassment policies on their website to facilitate access for contract workers (who are covered by the protections of the Equality Act 2010) or staff on leave who might find it harder to access the policies internally. The Guidance notes that external publication would also demonstrate the employer’s commitment to transparency on the issue of harassment.
• It is not appropriate to just tell employees they can get a copy of the anti-harassment policy from a manager.
• Anti-harassment policies should be shared with businesses that supply workers and services to ensure that all workers supplied are aware of the standards expected of them and how to report instances of harassment.
• Centralised records should be kept that enable trends to be spotted and analysed and staff surveys should be undertaken to evaluate the effectiveness of the policies. Employers should be proactive to trends that might indicate an underlying issue such as behavioural changes, dips in productivity, comments at exit interviews or avoidance behaviours.

The high degree of pro-activity that is now expected of employers may well come as a surprise to boards, if not to HR.  The key take-away is that it is no longer good enough to simply have a policy on anti-harassment that gets dusted off every once in a while.  Employers are expected to consider and address the issue at a strategic level.  The bottom line is that there is now an expectation that employers put the legwork in to actively root out harassment throughout the organisation, from shop floor to board room.

If workplace harassment doesn’t already feature on your business “risk register” then now is the time to add it.

Our employment team can help.  If you would like further advice or assistance in this area please contact David Smedley or Andrew Rayment.