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Sexual harassment and harassment at work – EHRC’s technical guidance

The Equality and Human Rights Commission has focussed its attention on the much anticipated “Sexual Harassment and Harassment at Work – Technical…

The cries of #metoo are very much as loud today as they were during the hashtag’s inception in October 2017 and whilst fallen movie kingpin Harvey Weinstein has been busy attempting to move his trial out of New York City, our very own Equality and Human Rights Commission (“EHRC”) has focussed its attention on the much anticipated “Sexual Harassment and Harassment at Work – Technical Guidance” (the “Guidance”).

The Guidance is a response to the issues identified in the EHRC’s report first published in March 2018 “Turning the tables – ending sexual harassment at work” (the “Report”). The Report highlighted the experience of those who had suffered from sexual harassment at work and its purpose was to draw on the wide range of issues to support practical solutions and potential improvements within the workplace. The main highlights were:

  • The most common perpetrators of harassment were senior colleagues (though many also confirmed that they had been harassed by customers, clients or service users);
  • Individuals felt they needed to simply “put up with” the behaviour as it was “part of their job”;
  • There was a huge reluctance to report the behaviour of senior colleagues as it would not be taken seriously;
  • A lack of action even when matters were reported; and
  • The fear of negative consequences if matters were reported

What does the Guidance say?

At a first glance, it’s clear that the 82-paged guidance covers the areas expected. From setting out the scale and effects of harassment in the workplace to simply detailing what harassment and victimisation are, it’s user friendly and easy to navigate. Businesses, no matter how big or small, should ensure that they make themselves familiar with the content and take on board the guidance provided.

At the very least, take note and indeed implement the guidance in section 5: “Taking steps to prevent and respond to harassment”. Everyone within the workplace expects to be treated with respect, dignity and without prejudice. So how can businesses or organisations prevent harassment, protect workers and meet legal responsibilities as an employer? Here’s how.

Have effective policies and procedures and foster a positive culture

Employers are expected to have in place effective and well communicated policies and practices which aim to prevent harassment and victimisation. They should be monitored, reviewed and supported with training.  But remember, it is not enough to simply have policies and procedures.   What about your workplace culture? It’s all very well having well-intended policies, but if your culture, managers or stakeholders do not uphold or exemplify what the policies aim to achieve – it begs the question why have them at all? If there are underlying issues with how your staff interact with each other, that needs to be dealt with separately and businesses cannot simply bury their head in the sand and say, “well, we have a policy, they should know not to do that”.

Employers specifically asked for clear guidance on what should be contained within an anti-harassment policy and the Guidance does that (section 5.6). Without going through each area covered, it is worth noting the positive suggestions within the Guidance, which specifically suggest the following should be included in any policy:

  • State that sexual harassment, harassment and victimisation will not be tolerated, is unlawful and may lead to disciplinary action up to and including dismissal if it is committed within or outside the work place. Individuals may think that as an act did not take place within the work place, within working hours or whilst using company property, they are exempt from any action being taken against them or even worse, the victim does not feel empowered to report any such incident. That is not the case and it’s great to see the Guidance specifically cover that area.
  • State that aggravating factors such as abuse of power over a more junior colleague will be taken into account in deciding what disciplinary action to take. Again, great to see this in any policy and have it encouraged by the EHRC, but without training and ensuring management are aware of just how seriously you treat such conduct renders any policy ineffective. Ensuring that you adhere to your policy and follow the process will instil confidence that any complaint will be addressed earnestly, not fall on deaf ears. The value, loyalty and culture you will foster and promote by having a policy and adhering to it will be invaluable. Why not have a campaign when rolling it out so everyone knows about it! Even if your starting point is a toxic culture, you have to start somewhere - take a stand, take it step by step and others will follow, as will the expected standard of behaviour. Additionally, taking such steps will help businesses retain staff and prevent losing good people for the wrong reasons!
  • Include an effective procedure for receiving and responding to complaints of harassment and indeed address third party harassment. Confirm it will not be tolerated. In the main, employers should ensure that workers are encouraged to report any form of harassment and detail what steps will be taken to prevent it and/or manage such complaints. The Guidance suggests warning notices to customers or recorded messages at the beginning of telephone calls confirming such conduct will not be tolerated. The Guidance provides helpful examples of what would be considered third party harassment and makes it clear when businesses would be liable for the actions of those they do not employ, which will again affirm accountability.

Detecting Harassment

The Guidance helpfully addresses how employers should be proactively aware of what is happening in the workplace. This is a positive step extending the responsibility of detection to all members of staff, again advancing a positive culture.

There may be warning signs that harassment is taking place. For example, a diligent worker suddenly absent for a period of time or a historically excellent performer, now performing below par. Workers should be encouraged and given every opportunity to raise issues and the Guidance encourages steps, which in the main involve consistent face to face meetings and communications with staff. It’s easy to hide behind an email or even a telephone call – but arrange that exit interview, the informal one-to-ones and engage with performance meetings or mentoring programmes. Be aware of what is going on around you or at least, give yourself the best platform and opportunity to do so.

What about malicious complaints?

The Guidance addresses the fact that employers may have policies that emphasise malicious complaints will result in disciplinary action. However, overemphasising that fact may deter individuals from raising a complaint. So what should you do?

Businesses should make it clear (in their policies and how they operate in practice) that they consider the vast majority of complaints are made in good faith. Even if it is found that an individual has not been sexually harassed (after conducting a thorough and fair investigation), that individual should not thereafter be branded a liar, untruthful or subjected to any detriment within the workplace.

Make it clear that workers will not be subjected to disciplinary action or any other detriment simply because their complaint is not upheld, and that disciplinary action will only result if it is found that the allegation is false and made in bad faith.

What do we think?

The biggest barriers within the work place usually involve perceived apathy and lack of concern. There’s the nuisance factor i.e. some individuals feel they are being a nuisance for bringing such matters to the attention of management and have to simply “suck it up”. Others believe that even if they do raise a complaint or wish to discuss an issue, they won’t be believed and/or nothing will get done. The Guidance pushes employers to be informed, accountable and take action, which is a positive step.

The Guidance is also a helpful tool for employers and genuinely a great resource, but employers may also benefit from real examples, data and success stories of the positive impact businesses have experienced when addressing sexual harassment complaints or promoting diversity and equality throughout their culture. Perhaps there aren’t too many to share (or a reluctance to share), but there must be some out there worthy of a wider audience to learn of the undoubted positive and impactful benefits.

As I say, you can have all the policies, procedures and good-intentions in the world, but if they are not put into practice and reviewed on a regular basis, how can they be considered genuine steps to prevent and respond to harassment? Lead by example. Ensure your managers, stakeholders and senior team members are invested, on board and willing to change where necessary. Any comfort zone or refusal to change is a huge barrier to progress and employers should always encourage and respond positively to progress. So, get started and get it done!

If you have any questions or would like to more know about our update, please contact Ingrid McGhee, Partner, on 0141 404 9300, or ingrid.mcghee@weightmans.com

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