Sexual harassment in the workplace | Where are we now?
Written on 16 December 2021
Thanks to a series of public outcries and increasingly progressive societal attitudes, recent years have seen sexual harassment become a more serious and widely-acknowledged subject than ever before.
However, the issue is still rife. And with corporate environments so often reflecting culture in the wider world, the workplace is certainly no exception.
The Equality and Human Rights Commission (EHRC) took steps towards tackling this in January 2020 by releasing technical guidance to help employers tackle and respond effectively to harassment. However, almost two years on, many employers are yet to implement the guidance within their own workplace.
What’s more, the UK government is expected to soon implement a statutory duty on employers to prevent sexual harassment at work – one of the suggestions originally made by the EHRC.
So, with such change potentially on the horizon, it’s vital that employers are conscious of the guidance in order to safeguard employees and avoid liability.
What employers need to know
Firstly, and most importantly, the EHRC guidance states that employers must take all “reasonable” steps to protect their workers and prevent harassment. This remains non-prescriptive and should be approached on a case-by-case basis.
For instance, while the guidance applies to all employers, the definition of reasonable may vary depending on the size of the organisation.
Crucially, though, the guidance stipulates that employers must scrutinise their own actions throughout any such process. They should first consider what the likely effect of the step is, and then assess whether an alternative course of action may be more effective or appropriate.
However, they are also entitled to cross-reference the effectiveness of the action against other, potentially mitigating factors. Much like the concept of reasonable practicability in health and safety law, elements such as cost, time and potential disruption to operations could be seen as justification for neglecting to take a particular course of action, it says.
The guidance also goes on to deal with some more specific scenarios. For instance, in the event that an employee has previously committed a harassment offence, the employer may be required to take particular steps in relation to that individual.
This may include, for example, conducting a series of disciplinary and educational sessions with the individual with a view to raising awareness and preventing future misconduct.
Crucially, the guidance goes on to state that carrying out a post-facto investigation, while necessary and important, is not enough in and of itself to satisfy the original requirement of taking “all reasonable steps” to prevent harassment. Preventive action is necessary, it says.
It also gives an example of what such preventative action could be taken, stressing the importance of taking complaints of harassment seriously in order to prevent future acts.
Employers may, for instance, see this as solid ground on which to reform the organisation’s code of conduct and complaints procedure.
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Perhaps most importantly, the EHRC’s guidance notes that the employer’s obligation to take all reasonable steps is ongoing. In other words, one-off actions and exercises will not be sufficient.
In practical terms, this means that even in the aftermath of an incident, organisations must continue to review whether there are any further steps they can take.
This may revolve around conditions and circumstances in the workplace that have changed. For instance, the availability of new technology or the arrival of new personnel.
Depending on the circumstances, organisations may want to consider the following practical steps in order to both prevent and address sexual harassment in the workplace:
- Develop an effective anti-harassment policy. The EHRC guide suggests that company policy should contain a statement in relation to conduct outside of the workplace and information regarding third-party harassment. It also requires employers to ensure that the policy is adequately communicated and to evaluate the effectiveness of it.
- Engage your staff. This will involve ensuring that employees have ample opportunity to raise concerns in an informal manner. Managers must also be proactive in terms of looking for signs of harassment.
- Assess and take steps to reduce risks in your workplace. Employers should make an assessment of risks relating to harassment and victimisation. The risk assessment should identify risk factors and the control measures to minimise the risks
- Reporting. As per the guidance, employers should consider introducing an online or externally-run telephone reporting system to allow workers to make complaints – either on a named or anonymous basis – similar to a whistleblowing hotline. Although anonymous complaints can create challenges, they can also highlight problems which may otherwise go undetected.
- Training. The guidance suggests that training should be received by three different groups and tailored to each: all staff should be trained on the different types of harassment and victimisation and what they should do if they experience or witness it; managers should receive training on the above, in addition to how to deal with complaints; and harassment “champions” or “ambassadors” should receive training on the above plus details on how to support someone through the complaints procedure.
- Dealing with complaints. The guidance sets out the key points on formally resolving complaints, including matters such as confidentiality and timeframes.
- Dealing with third parties. Employers should assess the risk of third-party harassment and put preventative measures in place. Information regarding third-party harassment should be included within the anti-harassment policy and instances of third-party harassment should be dealt with effectively.
Are you meeting your responsibilities?
Employers should do all they can to try to prevent sexual harassment happening in the first place. WorkNest’s Employment Law and HR specialists can help your organisation to proactively prevent issues through policies and training, and deal with complaints appropriately should they arise.
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