On 15 January the EHRC published new guidance on sexual harassment in the workplace. This guidance follows on from the EHRC’S 2018 report on this subject and its pledge to provide clearer guidelines on what constitutes sexual harassment and how best to deal with it. The main notable points arising out of the guidance are as follows:

  • It is guidance only, and not a statutory code. That said, Employment Tribunals could take it into account in legal proceedings.
  • Much like the ACAS Code it acknowledges that the expectations of employers regarding “reasonable steps” to avoid harassment will vary depending on their size and resources, and on the circumstances of each individual case.
  • The guidance stresses that in assessing whether employers have taken “reasonable steps” Tribunals may find that it would have been reasonable for employers to take certain steps to prevent harassment, even if they would have made no difference to the outcome. However, it is permissible for employers to weigh such steps against other factors such as time, cost and disruption.
  • Taking “reasonable steps” to prevent harassment will involve taking preventative steps as well as reactive steps. However, investigations and disciplinary action will help to demonstrate that the employer takes anti-harassment measures seriously and is trying to prevent future acts of harassment.
  • Employers should ensure that anti-harassment measures are embedded within its their culture – e.g. rather than having a standalone policy regarding anti-harassment, they should ensure that all relevant policies and procedures (such as the social media and IT communications policies, performance appraisal system) reflect its their anti-harassment stance and measures. Efforts should be made to raise awareness of all policies in on a regular basis and in advance of key events such as office parties. The effectiveness of policies needs to be evaluated on an ongoing basis e.g. through staff surveys.
  • Employers need to be alive to the “warning signs” of harassment such as sickness absence and changes in behaviour, and proactively create an environment in which it is easy for employees to “speak up”.
  • Employers should consider introducing an anonymous harassment reporting system, akin to a whistleblowing hotline.
  • Employers must proactively assess areas of harassment risk, such as power imbalances, job insecurity and alcohol-fuelled social events.
  • NDAs must be used carefully, lawfully and in line with the EHRC guidance.
  • There are also some practical tips for how best to manage investigations and complaints regarding harassment, and in particular how to support individuals who raise complaints.

The guidance also contains some helpful, “business-friendly” guidance, with examples, on what constitutes discrimination and harassment, and explains some lesser-known concepts such as associative discrimination.

The content of the guidance will not come as a surprise to many employers as it is in line with the broad observations and recommendations made by the EHRC in the 2018 report. However, the examples given are useful and will help many businesses put these recommendations into context.

The guidance is welcome but it remains the case that managing harassment allegations is challenging for employers and employees alike, given the sensitive nature of the issues raised. To discuss how your organisation can improve its approach in such cases please contact the team at Kemp Little.