More than two years after the #MeToo movement lifted the lid on workplace harassment, we are now starting to see a real change in approach – even if this comes in the form of guidance rather than a change in the law. Marking a shift in emphasis by placing more responsibility on the employer, the recently issued Sexual harassment and harassment at work: technical guidance by the Equality and Human Rights Commission (EHRC) aims to reflect the law and best practice, but arguably goes further than this. Although the guidance is not statutory, tribunals may take it into account in harassment cases. The government still plans to introduce a statutory code of practice, explaining that the guidance represents a draft version of the code.
A whole chapter is devoted to preventative measures to tackle harassment, which can be used by the employer to rely on the reasonable steps defence. Provided employers have these measures in place they may avoid liability for the actions of a rogue employee if a harassment claim is raised. The reasonable steps defence was an area ripe for clarity, however. What is clear is that having an anti-harassment policy and enforcing it will not be enough to show an employer has taken preventative steps.
The guidance suggests employers should consider setting out strategic action plans to prevent different types of harassment. For example, how would you tackle harassment on the grounds of age, and what are the different issues to consider with disability? Other examples include a central record of harassment complaints and the identification of trends.
New approaches to include in a policy review include the introduction of a workplace harassment champion to resolve informal issues and taking a more health and safety-based approach by introducing a risk assessment process. The bystander issue is also addressed. How many of us have seen inappropriate behaviour at work and said nothing? Policies should be updated to encourage people to report harassment and, if possible, intervene.
There is a real focus throughout the guidance on employers taking steps to prevent harassment by third parties. The introductory section explains that just under a quarter of respondents to a 2018 survey reported being harassed by customers, clients or service users. Acknowledging that this aspect of the Equality Act was repealed, the guidance explains that employers may still be liable for the actions of third parties on the grounds of indirect discrimination. Liability may also arise where the reason for an employer’s failure to prevent an act of third-party harassment was because of a protected characteristic.
In addition, the guidance recommends that various measures regarding third-party harassment be included in the anti-harassment policy. Importantly, it also states that the policy should explain what steps will be taken to remedy a complaint or prevent it happening again. We sometimes see businesses struggling with how to deal with offensive comments from their clients to their employees. Being able to now say they are following the EHRC guidance should make things easier when taking steps against a customer or client.
Certain aspects of the guidance may not be popular – in particular, those relating to informing a complainant about steps taken against the harasser. This would involve an overhaul of privacy policies to advise individuals in advance that disciplinary outcomes may be disclosed in the event of a harassment complaint. The guidance also mentions non-disclosure agreements and states that they should only be used in harassment cases where it is necessary and appropriate to do so.
Reviewing policies and training for managers and workers are obvious next steps. Decisions will need to be made on how many of the preventative steps are reasonable for an organisation. To assist with this, a short seven-step guide on preventing workplace harassment has also been published by the EHRC.
In addition, the Equalities Office has announced that it plans to carry out a survey to understand how individuals have been affected by workplace harassment. And it also plans to publish its response to the consultation on workplace harassment (which closed on 2 October 2019) in Spring 2020. So expect to see more changes in this area coming soon.
Gillian MacLellan is an employment partner and Val Dougan a professional support lawyer at CMS