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Employer sexual harassment guidance published by EHRC

Out-Law News | 20 Jan 2020 | 11:18 am | 3 min. read

New guidance setting out employers' legal responsibilities to prevent and respond to the harassment and victimisation of their staff at work has been published by the Equality and Human Rights Commission (EHRC).

The guidance provides practical tips for employers along with additional advice and guidance on how the law should be interpreted for workers, legal advisers and courts and tribunals. It is expected to become a statutory code of practice in due course, which means that it will have legal force.

The publication of the guidance coincides with the launch of a government survey of those who have experienced sexual harassment inside and outside of the workplace. The government intends to use the results of this survey as part of its work to reform the law in this area.

EHRC chief executive Rebecca Hilsenrath said: "It's been two years since #MeToo forced sexual harassment to the top of the agenda. We've seen some employers wake up, take this on board and start to make the differences which will transform working environments and boost the economy through empowering people to reach their potential, but we need others to follow suit".

Rebecca Hilsenrath,

EHRC chief executive 

No form of harassment can ever be justified and for too long the onus has been on the victim to challenge inappropriate treatment. We hope that our guidance will shift the burden back on to employers.

"No form of harassment can ever be justified and for too long the onus has been on the victim to challenge inappropriate treatment. By setting out legal requirements and providing practical examples on preventing and responding to harassment, we hope that our guidance will shift the burden back on to employers," she said.

The guidance explains the legal status of and differences between the three forms of harassment: sexual harassment; harassment related to a "relevant protected characteristic" such as race, age, disability, sex, sexual orientation or religion or belief; and less favourable treatment for rejecting or submitting to unwanted conduct. It also does the same for victimisation.

'Unwanted conduct' amounting to harassment can include gestures, jokes, 'banter', mimicry and posts or contact on social media, according to the guidance. Whether the conduct is 'unwanted' should be considered from the worker's subjective point of view and not how it was intended by the perpetrator, although a tribunal or court may consider external factors when deciding whether it accepts that the conduct was subjectively unwanted.

Employers are advised to develop an effective anti-harassment and victimisation policy which covers behaviour which takes place at work and at "situation[s] related to work" such as workplace social events; against a colleague or person connected to the employer outside of a work situation including on social media; or against anyone outside of a work situation where the incident is relevant to the perpetrator's suitability to carry out their role at work. A good policy should also state that abuse of power over a more junior colleague will be treated as an aggravating factor.

Employers should allow staff to report incidents anonymously, and should have an 'open door' policy to encourage them to report their concerns to senior management. They should also train staff on what sexual harassment in the workplace looks like, what to do if workers experience it and how to handle complaints; and treat harassment of staff by a third party as seriously as that by a colleague.

The policy should also encourage witnesses to harassment or victimisation to take steps to address it. Employment law expert Sue Gilchrist of Pinsent Masons, the law firm behind Out-Law, said that these provisions were aimed at avoiding so-called 'bystander syndrome'.

"The EHRC wants employers to encourage a proactive response from those who witness harassment or victimisation, by including policy statements that encourage witnesses to take action to intervene; ask the victim to report the incident or support them in reporting it; or the witness should report the incident themselves if they feel there may be a continuing risk if they do not do so," she said.

"This sort of behaviour - putting an onus on all of us to take steps to prevent harassment – is very much to the fore in the EHRC's positioning of the guidance. Saying 'that's not ok' is one way of doing this in a relatively non-confrontational style, but witnesses and managers may well benefit from support in that area. Employers are already offering training on avoiding bystander syndrome, which is welcome," she said.

Employment law expert Helen Corden of Pinsent Masons said: "This is an extremely comprehensive guide which covers all forms of harassment and sets out some detailed examples of what would and would not amount to harassment. All employers should read it and review their internal policies and procedures in light of it."

The UK government consulted last year on a package of measures to tackle sexual harassment at work including the creation of a legal duty for employers to take all reasonable steps to protect their staff from sexual harassment by third parties; whether volunteers and interns, as well as staff, need greater legal protection; and whether the current three-month time limit for employment tribunal claims under the Equality Act should be extended in cases involving sexual harassment. It will confirm next steps in the spring.

The government also intends to legislate to prevent employers from using confidentiality clauses and non-disclosure agreements to stop individuals from disclosing information to the police, regulated health and care professionals and legal professionals.