The new anti-harassment guidance and how to apply it

The Government’s equality watchdog, the Equality and Human Rights Commission (EHRC), has released new non-statutory guidance for organisations on preventing harassment at work.

This new guidance focuses on several key areas, including what type of behaviour employers ought to look out for and how they should respond to harassment complaints. With a particular focus on sexual harassment, the document combines the latest best practice advice into one place for employers who may lack the desire, or resources, to keep on top of case law developments. Although this is not statutory guidance, and therefore does not need to be followed to the letter, employers should seriously consider reviewing their own practices and adopting these measures to guard against harassment at work. Furthermore, tribunals may take failure to follow this guidance into account going forward.

Background to the guidance

Under the Equality Act 2010, harassment takes place where there is unwanted conduct relating to a protected characteristic which causes the recipient to feel that their dignity has been violated or that the action has created an intimidating, humiliating, hostile or degrading environment for them. In these situations, it is the perception of the person claiming harassment that will be considered. For example, an employment tribunal recently found that a factory worker was sexually harassed by her manager after a crude comment in her birthday card led her to feel humiliated, even though his comment was not meant to cause offence. Following the rise of the #MeToo movement in October 2017, individuals from across the globe have come forward with stories of how they have been subjected to sexual harassment at work, an unfortunate trend which does not appear to be slowing down. As a result, the Government has faced increasing calls to release statutory guidance for employers on the best methods of prohibiting, preventing and responding to this issue at work. Now, this new guidance utilises existing law and practical examples to provide clearer instructions for the best methods to take.

Guidance content on worker protection

The guidance specifically provides an up-to-date list of behaviours that may constitute harassment, provided it is both unwanted and relates to an individual’s protected characteristic.

These behaviours include:

  • spoken words

  • “banter”

  • imagery

  • written words

  • posts on social media

  • physical gestures

  • facial expressions

  • mimicry

  • graffiti

  • aggression

  • physical behaviour towards a person or their property.

It confirms that this protection extends to all workers, including those who are no longer employed by a company. It also covers situations where the contract of employment is illegal, unless there is an “inextricable link” between the conduct and the harassment taking place. In cases where it is impossible to separate one from the other, a tribunal or court may not be able to hear the claim. In addition to this, the guidance also includes situations where the worker is not actually working but is still in a situation that is connected with work, for example social gatherings organised by the company. Recent cases have stressed that organisations can find themselves liable for behaviour that occurs outside of the workplace, providing it occurs in ”the course of employment”. With this in mind, the EHRC’s guidance explains that whether or not acts committed outside of work are committed “in the course of employment” will depend on the strength of the connection with work in each particular case.

Previously, there has been much controversy surrounding third-party harassment, with the 2018 President’s Club scandal seeing a number of women subjected to harassment from attendees at a dinner. While the guidance confirms that there is no specific protection against third-party harassment under the Equality Act 2010, employers are nevertheless encouraged to take reasonable steps to prevent this, such as clearly signposting such conduct is unacceptable, taking steps to warn or ban a perpetrator following a complaint and informing the police of their actions. Another issue that was brought to light by the scandal was the misuse of non-disclosure agreements (NDAs). While there have been calls in recent times to impose stricter rules on when and where NDAs should be utilised, the EHRC reminds employers that such provisions must only be used where lawful. This means NDAs, or confidentially agreements, cannot be used to prevent workers from whistleblowing, reporting a criminal offence or complying with a regulatory duty.

Guidance content on employer defence

The guidance reiterates the previously held belief that employers will be liable for all forms of harassment committed by their workers during the course of their employment, unless they can demonstrate that they took “reasonable steps” to prevent it. It will also not matter whether an employer is aware of the harassment. In order to rely on the “reasonable steps” offence, employers will need to demonstrate that there are no additional steps that could have been taken, and that no alternative step could have been considered, to avoid the harassment. What is considered “reasonable” will also depend upon the specific facts of the case.

To justify that reasonable steps have been take, the EHRC advises employers to have effective and well communicated anti-harassment policies and ensure staff are given every opportunity to raise issues. The policy should clearly define all forms of harassment, including victimisation, identify a reporting procedure for workers to refer to and be regularly reviewed to ensure effectiveness going forward. When it comes to responding to complaints of harassment, organisations are encouraged to attempt an informal resolution in the first instance. If this proves unsuccessful, or an informal approach would be unsuitable, then a formal procedure will be required. Organisations are advised not to set a time limit when dealing with complaints, or disregard those where the incident in question took place some time ago.

To ensure objectivity during investigations, organisations are also encouraged to appoint investigatory officers who are not directly involved in the issue, preferably from different parts of the organisation, who have less knowledge of the people involved. Importantly, if a worker raises a complaint but then decides not to take the matter any further, organisations should still take steps to ensure the matter is resolved.

Conclusion

This guidance does not tell employers what they do not already know; it simply provides practical examples of what they should be aware of and the best methods for dealing with harassment. That said, it does serve as a useful reference point going forward. With the Government having recently consulted on the effectiveness of current laws surrounding sexual harassment, and with a statutory Code of Practice still expected at some point in the future, employers would be wise to adopt the approach as outlined here in preparation for this.

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