All employers have a duty of care to protect their workers' health and safety. Employers will be legally liable for harassment in the workplace if they have not taken reasonable steps to prevent it.
In early 2018, the Equality and Human Rights Commission (EHRC) published a report, Turning the tables, in light of the #MeToo movement to tackle workplace harassment. It found that some of the barriers to report sexual harassment included:
- a view that the employer would not take the issue seriously
- a belief that alleged harassers, particularly senior staff, would be protected
- fear of victimisation
- a lack of appropriate reporting procedures
A new report from the EHRC, Sexual Harassment and Harassment at work provides updated guidance. We have set out below some of the key best practice points that employers should implement in order to seek to prevent and respond to sexual harassment in the workplace.
Practical Points - Preventing Harassment
- Effective policies, procedures and training
Employers should have effective and well communicated policies, practices and training that aim to prevent harassment. The policies should be monitored and their successes reviewed regularly. Anti-harassment policies and other measures should be developed in consultation with employee representatives to ensure that employees' views are taken into account.
A good anti-harassment policy should include an effective procedure for receiving and responding to complaints. Employers should also ensure that there are staff members who are trained in providing support to individuals who have experienced harassment in work.
You should keep records of who has received training and ensure that it is refreshed at regular intervals.
- Awareness of policies
Employers should ensure that all employees are aware of their anti-harassment policies. You should consider publishing policies on an easily accessible part of your external-facing website. Policies should always be verbally communicated to employees during the induction process.
- Detecting harassment
It is vital that employers are aware of any warning signs that harassment is taking place, beyond informal and formal complaints. For example, sickness absence, a change in behaviour, comments made in exit interviews or avoidance of a certain colleague should be investigated. You should provide employees the opportunity to raise issues through:
- informal one-to-ones
- sickness absence or return-to-work meetings
- exit interviews
- a post-employment survey
- mentoring programmes and staff networks
Practical Points - Responding to Harassment
Employers should not set a time limit within which complaints must be made. An employee may not be able to raise a complaint within any such time limit due to, for example, illness or fear of victimisation. You should not make assumptions that because an alleged event took place a long time ago, you will not be able to find any evidence relating to it.
The EHRC say that, where a complaint is upheld, the complainant should be told what action has been taken by the employer to address this, including action taken to address the specific complaint and any measures taken to prevent a similar event happening again in the future. If the complainant is not told what action has been taken, this may leave them feeling as if their complaint has not been taken seriously or addressed appropriately.
While employers may have concerns around reporting outcomes in light of the General Data Protection Regulation (GDPR), employers should not assume that disclosure of the harasser's personal data will amount to a breach of the GDPR. Very often, in the EHRC's view, this will not represent a breach, if the employer has been clear at the outset that outcomes may be disclosed, considered what grounds it has for disclosure and acts proportionately in disclosing personal data. Employers should carefully review their anti-harassment and data protection policies and the privacy notices provided to employees setting out how their personal data is processed.