New EHRC guidance on sexual harassment

The EHRC has published its new technical guidance alongside a letter to the CEOs of top employers in a call to action to protect workers from sexual harassment. Read the letter and full guidance here.

Whilst the guidance is not yet a statutory code, it may still be used as evidence in legal proceedings and the letter states that the guidance is expected to become statutory in due course.

The guidance is a useful reference for employers (as well as workers, advisers and the tribunal), setting out a comprehensive guide to the law in this area with helpful examples to demonstrate how it works in practice. Importantly, it sets out best practice for employers in tackling harassment, identifying specific practical steps to prevent and respond to harassment.

The guidance highlights seven key practical steps:

1. Develop an effective anti-harassment policy: this should be well-communicated, monitored and its success regularly reviewed. The guidance is very clear about what a good policy should contain, as well as flagging potential issues such as dealing with malicious complaints. It is also prescriptive about how the policy should be communicated and evaluated.

2. Proactively seek to be aware of what is happening in the workplace and give staff the opportunity to raise issues with regular one-to-ones, an open door policy, exit interviews etc.

3. Train all staff specifically on the different types of harassment, keep training records and complete refresher training regularly.

4. Consider introducing an online or externally run telephone reporting system to detect complaints that might go unreported.

5. Assess and mitigate risks in the workplace. Factors may include power imbalances, lone working, the presence of alcohol, and particular events etc. There is also specific guidance on what employers can do to tackle power imbalances, such as taking positive action to improve representation of an under-represented group and tackling bias in recruitment and promotion decisions.

6. Have a procedure in place so that you know what to do when a complaint is made and you can act promptly. The guidance is again prescriptive as to what a good procedure should look like, for example, it should tell workers how to make a complaint, define multiple reporting channels, set out a range of approaches for dealing with harassment (formal and informal) and of appropriate consequences etc. There is also specific guidance around confidentiality during an investigation and requests not to take action.

7. Treat harassment by a third-party just as seriously as that by a colleague.

Employers should consider and review their policies and procedures in light of the new guidance. However, the guidance is clear that it should not be a one-off exercise: employers should continue to review whether there are further steps they can take, for example if there have been changes such as new technology for reporting systems.

Other key points of interest include:

• The guidance is relatively light touch in relation to NDAs (which were covered in detail in their recent guidance but recent ACAS guidance has since been published), but reiterates that NDAs should only be used where necessary and appropriate, and not to use them to prevent whistleblowing, reporting a criminal offence or doing anything required by law (or regulatory duty).

• There is an interesting point around the extent to which you can share information about a disciplinary outcome with the complainant.  The guidance specifically states that "employers should take steps to enable disclosure of the outcomes to complainants where it is appropriate to do so. This includes reviewing contracts, policies, procedures and privacy notices to ensure that they inform workers when the outcome of complaints and disciplinary proceedings may be disclosed."

• There is some helpful technical guidance in relation to employment status (where an individual is not protected), the meaning of "in the course of employment" and third party harassment.

• In relation to what is meant by "taking all reasonable steps" to prevent harassment (as a potential defence against liability for harassment committed by a worker), the guidance gives examples as to what would be reasonable, including that specific steps would be necessary where it knows that a worker has previously committed an act of harassment.