Partner Sue Dowling, in our Employment Law team, explains the Equality and Human Rights Commission's (EHRC) guidance on sexual harassment and harassment at work.
Following their 2018 report, ‘Turning the Tables’ the Equality and Human Rights Commission (EHRC) has now highlighted some of the most prevalent issues relating to harassment in the workplace, and made a range of recommendations to the UK Government on how to tackle the issue.
The new ‘Technical guidance’ document from the EHRC published in January 2020 is not a statutory code, but includes practical steps employers can take to eliminate both sexual harassment and harassment in the workplace and may still be used as evidence in legal proceedings.
Background and scale of harassment
Employers are responsible for ensuring that workers do not face harassment in their workplace. The EHRC guidance confirms that such conduct has a significant negative effect on both workers and employer. It damages the mental and physical health of individuals but also can create a negative impact on workplace culture and productivity.
Research referred to by the EHRC suggests that the scale of harassment in the UK is huge and is largely hidden because of under reporting – which indicates an absence of confidence in reporting and resolution procedures. Employers may (wrongly) interpret this to mean that harassment is uncommon in their workplace.
All employers must take reasonable steps to prevent harassment. This will vary depending on the employer but no employer is exempt from this duty because of their size or budget.
What is harassment?
Conduct can amount to harassment or sexual harassment even if it is not intended. Harassment can be: (1) related to a protected characteristic (i.e. age, disability, gender reassignment, race, religion/belief, sex, sexual orientation), (2) be sexual harassment, or (3) less favourable treatment for rejecting or submitting to harassment. It can never be justified, nor is it necessary for the worker to compare themselves to any of their colleagues. Victimisation is also unlawful.
Harassment related to a protected characteristic arises when a worker is subject to unwanted conduct related to a protected characteristic and this has the purpose/effect of:
- Violating the worker’s dignity or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker.
‘Unwanted conduct’ can mean Spoken words, Banter, Written word, Posts/contact on social media, Imagery, Physical gestures, Facial expressions, Mimicry, Jokes/pranks, Aggression, Physical behaviour towards a person or their property.
‘Unwanted’ means unwelcome, or uninvited. This should be considered from the workers’ point of view. It is not necessary for the worker to object, but this will be taken into consideration.
Sexual harassment occurs when a worker is subjected to unwanted conduct of a sexual nature. The conduct need not be sexually motivated, only sexual in nature. An individual can experience unwanted conduct from someone of the same or a different gender. Sexual interaction that is invited, mutual or consensual is not sexual harassment because it is not unwanted. Note that sexual conduct that has been welcomed in the past can become unwanted.
Conduct ‘of a sexual nature’ includes a wide range of behaviour, such as: Sexual comments/jokes, Suggestive looks/staring, Propositions and sexual advances, Spreading sexual rumours about a person, Unwelcome touching, hugging, massaging or kissing.
An employer will not be liable for harassment committed by a worker in the course of employment if they can show that they took ‘all reasonable steps’ to prevent the harassment – this will depend on the circumstances of each case.
Employers also need to take all reasonable steps to prevent third party harassment. Those who do not take reasonable steps to prevent or respond to third party harassment may be liable.
EHRC Guidance: Taking steps to prevent and respond to harassment
Effective policies and procedures are expected of all employers. These should be monitored and include separate harassment and sexual harassment policies.
A good anti-harassment policy should be freely available, reviewed annually and include:
- Who the policy covers
- State that harassment, sexual harassment and victimisation are unlawful and will not be tolerated.
- State that disciplinary action up to and including dismissal may be taken if committed
- Define protected characteristics that harassment may be related to
- Include an effective procedure for receiving and responding to complaints of harassment
- Tell workers how to make a complaint – formally or informally
- Set out a range of approaches for dealing with harassment
- State that victimisation against a complainant will not be tolerated
- Provide contact details for and external information about external sources of support and advice
Detecting harassment
Employers should proactively seek to be aware of what is happening in the workplace, and workers should be provided with training which addresses each of the three types of harassment, along with training on victimisation.
Employers should keep records of who has received the training and ensure that it is refreshed at regular intervals. They should also make an assessment of risks relating to harassment and victimisation.
Employers should promote a culture of transparency – where workers feel empowered to speak up about discrimination and the root causes of issues can be tackled.
Power imbalances should be addressed where possible – introduce training on diversity and inclusion.
Employers must recognise that an informal solution may not be appropriate or may not work in many cases. They should also not set a time limit within which complaints must be made
Investigating harassment
Employers should ensure that investigators have appropriate expertise to conduct an investigation and that they have access to appropriate advice. The employer should ensure that the complaint is kept completely confidential to protect the complainant from any further disadvantage.
Even in situations where a worker raises a complaint but asks their employer not to take the matter any further, the employer must keep a record of the complaint and the worker’s request on file. They should encourage the worker to address the issue and keep the situation under review. Where possible, the employer should respect the wishes of the complainant. If it is appropriate to take further action, for example where the harassment is so serious that there is an immediate risk to the safety of the complainant, the employer must do so.
Some acts of harassment may also amount to a criminal offence – in these circumstances, the incident may have to be reported to the police by the employer.
Preventing further harassment
After a formal complaint of harassment/victimisation has been made, an employer should consider which steps need to be taken. Sometimes no action is necessary, but in other cases it may be necessary to limit the contact between the complainant and the alleged harasser.
Witnesses to harassment or victimisation should be encouraged to take steps to address the matter. The employer should assure witnesses that it will not subject them to a detriment for providing information.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
