Education briefing - Publication of new EHRC technical guidance on sexual harassment and harassment

• United Kingdom

• Education - Briefings

17-01-2020

On 15 January 2020, the Equalities and Human Rights Commission (“EHRC”) published new and comprehensive technical guidance setting out the law and best practice on the prevention of workplace sexual harassment and harassment. The guidance also encompasses victimisation, in the light of the EHRC’s conclusion that fear of victimisation is one of the biggest barriers to people reporting harassment at work.

Background

In December 2018, in the wake of the #MeToo movement and a much-publicised report on sexual harassment from the House of Commons Women and Equalities Select Committee, the Government announced a raft of measures aimed at tackling sexual and other harassment. This included plans to issue a statutory Code of Practice and better regulation on the use of non-disclosure agreements (“NDAs”). This was followed, in July 2019, by a technical consultation on sexual harassment contemplating changes to the Equality Act, including the reinstatement of revised third party harassment provisions (see our briefing). Last year also saw the publication of EHRC guidance on the use of NDAs in discrimination cases (see our briefing), action by Regulators such as the Solicitors Regulation Authority and proposals for new legislation. Acas guidance on NDAs is expected to be published shortly.

Scope

This new technical guidance is extremely comprehensive, with clear explanations of the relevant legal principles and numerous examples to illustrate practical issues. Information is provided on the prevalence and effects of some of the different forms of harassment in the workplace, including statistics and research findings from the EHRC and others. More broadly, the guidance advocates that employers should address workplace power imbalances and promote a culture of transparency, where workers feel empowered to speak up about discrimination.

This guidance is not a statutory code. As such, although it may be referred to as evidence, an employment tribunal is not obliged to take it into account. However, the EHRC states that it is expected to become a statutory code in due course (whether in exactly the same format remains to be seen). This is because in its consultation on workplace sexual harassment which closed on 2 October 2019, the Government stated that there would be a new statutory Code of Practice on sexual harassment and harassment at work to further clarify the law in this area and that the EHRC would first release technical guidance on this topic, with plans for it to form the basis of a statutory Code of Practice to be laid in Parliament “following the outcome of this consultation”. At the moment we are awaiting the outcome of the consultation exercise.

Summary of key recommendations

To help employers understand how best to meet their responsibilities to prevent and respond to harassment, the guidance recommends they should:

• develop effective anti-harassment policies and procedures, ensuring they do not conflate different forms of harassment

• raise awareness of their anti-harassment policies and procedures. It is suggested, for example, that employers consider publishing their policies on an easily accessible part of their external-facing website

• evaluate the effectiveness of their policies, for example, by maintaining a centralised, GDPR-compliant, register to monitor trends or by the use of anonymous staff surveys

• detect harassment by proactively seeking to be aware of what is happening in the workplace beyond informal and formal complaints, being alert to “warning signs” such as comments made in exit interviews

• provide all workers with tailored training which addresses each of the three types of harassment and victimisation, ensuring also that there are individuals trained to support workers who have experienced harassment through the process of making a complaint

• conduct a risk assessment relating to harassment and victimisation, which the EHRC suggests could be based upon existing health and safety risk management frameworks

• deal promptly, efficiently and sensitively with complaints of harassment, with the guidance including recommendations for the contents of a good anti-harassment procedure, including routes for both informal and formal resolution

Comment

This latest development makes it clear that the new Government remains committed to pushing forward with reforms aimed at strengthening protection for workers against inappropriate behaviour in the workplace.

As mentioned, currently adherence to this technical guidance is a voluntary measure. However, given that it is likely to form the basis of the promised statutory Code, which may also encompass any proposed Equality Act enhancements, institutions would be well-advised to take steps now to use the guidance to benchmark their own strategy for preventing and tackling workplace harassment, including policies and procedures, to ensure it will stand up to future scrutiny.