The Equality and Human Rights Commission (EHRC) have published a technical guidance on sexual harassment and harassment at work.
Whilst onerous in that it runs to over eighty pages, it’s difficult to argue that it hasn’t arrived at an appropriate time.
In 2020, we live in a society that is much more aware of how we should (or more pertinently, shouldn’t) treat our colleagues. Yet barely a week goes by when we’re not exposed to another media report of inappropriate behaviour within an organisation, family empire or sporting institution.
Overview from the Technical Guide
The guidance sets out key findings from the EHRC’s study, which employers should consider when reviewing policies and procedures to understand where amendments are necessary. Significant outcomes from the study include:
- Three quarters of all those who responded to the survey had suffered some form of harassment.
- Nearly all of the respondents questioned who suffered harassment were women.
- The most common perpetrator of the harassment was a senior colleague.
- Approximately half of the victims had not reported the harassment for fear of nothing happening.
What is harassment?
Under the Equality Act 2010, harassment is defined as one person engaging in unwanted conduct related to a relevant protected characteristic against another which has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
In any workforce there will be varying opinions about what conduct gives rise to an offensive, humiliating, intimidating, hostile or degrading environment. What one worker, or even a majority of workers, might see as harmless fun or ”banter”, another may find unacceptable. A worker complaining about such conduct may be considered by others to be overly sensitive or prudish. However, it is important to understand that, regardless of how it is intended, such conduct can amount to harassment or sexual harassment if that is how it is received by the subject…and the subject is found not to have been oversensitive in their reaction.
What are the effects on the business?
An employer will be held liable for harassment committed by its workers unless it can show that all reasonable steps were taken to prevent such behaviour from occurring. There are no prescribed minimum standards for an employer to put in place in this regard. Rather, it depends on what steps it is reasonable for the employer to take in the circumstances.
Whilst the financial exposure employers face in respect of a successful claim for harassment at employment tribunal is relatively easy to quantify, the hidden costs of low morale, poor retention, bad publicity and ultimately, loss of custom can be more damaging.
However, if you make Dignity at Work a key agenda item in order to drive cultural change within the business, it will go a long way to mitigating these risks.
To avoid harassment arising in the first place, or at least limit liability for the unwanted conduct of individual employees, employers should take preventative steps such as:
- introducing or auditing / updating your current policies and procedures on harassment to ensure they reflect the key aspects of the EHRC’s latest guidance;
- engaging your teams by effectively communicating these policies and procedures to promote Dignity at Work;
- ensuring that the policies and procedures are consistently applied by managers who are trained in their implementation; and
- regularly reviewing your policies and procedures to ensure they comply with the latest guidance and Employment Law developments in this area.
To assist employers in identifying the behaviours that could give rise to valid discrimination complaints, we’ve produced a series of “myth busters” to help separate fact from fiction, all of which are freely available on our website.