In January 2020, the Equality and Human Rights Commission (EHRC) published new guidance on sexual harassment and harassment at work.
The new guidance follows on from the EHRC’s report in March 2018, which identified issues relating to harassment by customers and clients, harassment by managers or senior colleagues, and barriers to reporting including a lack of employer action and fear of negative consequences.
The guidance is not a statutory code. This means that although an employment tribunal is not obliged to take the guidance into account, it can still be used as evidence by the parties.
The guidance considers sexual harassment, harassment of LGBT people, and harassment related to sex, race, religion or belief, age and disability. It provides useful examples of behaviour that would constitute harassment, and an explanation of the relevant legal tests, for example when conduct will ‘relate to’ a protected characteristic.
The protected characteristics are age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, and pregnancy and maternity. There is also very helpful guidance on protection against victimisation and examples of what would amount to a detriment.
Under the current legislation, an employer will not be liable for harassment committed by a worker in the course of employment if it can show they took all reasonable steps to prevent it. The guidance considers how to assess whether or not a step is a reasonable one, for example by looking at how effective it is likely to be, as well as the time, cost and potential disruption it might cause.
Employers are under an ongoing duty to review the steps they are taking to prevent harassment, including asking the following questions:
- Do we have effective policies and procedures (which interact well with other policies such as dress code, IT and social media policies)?
- Are our workers aware of our policies?
- Do we evaluate the effectiveness of our policies (for example through staff surveys or centralised records of complaints)?
- How do we identify the warning signs and risks of harassment in our workplace?
- What training on harassment should we provide, and how often?
The guidance outlines what an effective anti-harassment procedure should cover, and how issues can be resolved (both informally and formally). It also covers more tricky issues such as confidentiality during an investigation, requests by workers not to take action, and how to deal with possible criminal behaviour.
The Government Equalities Office has made a number of commitments to tackle harassment in the workplace, including undertaking a workplace harassment survey.
With over 12,000 people to be interviewed, the survey is described as one of the largest of its kind. It is unclear how many of these individuals will have suffered from harassment, however, the hope is that the survey will help build a clearer picture of who is affected.
The results of the survey are expected to be published in April or May 2020 and will influence a new statutory code of practice in due course. In the meantime, employers should review the new EHRC guidance.
If you would like to discuss your own policy and procedure, or the steps you are taking to prevent workplace harassment, please contact a member of the employment team.