EHRC issues updated guidance on sexual harassment at work

by Personnel Today

The Equality and Human Rights Commission (EHRC) has published updated guidance on how employers should deal with sexual harassment in the workplace. The guidance covers sexual harassment, harassment and victimisation, and anticipates changes to employers’ obligations under the Worker Protection Act, which comes into force next month.

Under the new rules, employers have a positive legal duty to take steps to stop sexual harassment at work, meaning they must be proactive about prevention and how they deal with complaints.

The EHRC’s updated guidance includes a number of recommended actions for employers, including:

• Developing and widely communicating a “robust” anti-harassment policy, including third-party sexual harassment.
• Undertaking regular risk assessments to identify where sexual harassment may occur, and identifying steps to address risk.
• Looking out for warning signs in the workplace and being “proactively aware”, through surveys and exit interviews.
• Monitoring and evaluating how effective these steps are.

Once the law change is in force, if an employment tribunal finds that a worker has been sexually harassed, it must consider whether the preventative duty has been met. If not, the employer could be ordered to pay up to an additional 25% compensation.

The publication of revised guidance comes amid a series of allegations this week from staff at Harrods who claim they faced sexual harassment and assault by its former owner, the late Mohammed Al Fayed.

Barristers representing former employees of the department store have claimed there was an “unsafe system at work” where employees felt they could not report abuse because senior executives would cover up what was going on.

Baroness Kishwer Falkner, chairwoman of the Equality and Human Rights Commission, said: “Sexual harassment continues to be widespread and often under-reported. Everyone has a right to feel safe and supported at work.

“The new preventative duty coming into force on 26 October aims to improve workplace cultures by requiring employers to proactively protect their workers from sexual harassment.

“Employers will need to take reasonable steps to safeguard their workers. We have updated our guidance to ensure they understand their obligations and the kinds of steps they can take.

“We will be monitoring compliance with the new duty and will not hesitate to take enforcement action where necessary.”

In an exclusive article for Personnel Today, Joanne Cash, commissioner at the EHRC, said that responses to its consultation this summer had been invaluable in shaping the new guidance.

“We asked to hear from those on the ground about how we could ensure our guidance is both practical and user-friendly,” she said. “Your responses enabled us to optimise how effective a tool our guidance will be to tackle workplace sexual harassment.”

Hina Belitz, employment partner at Excello Law, welcomed the new guidance and issued the following advice: “Although I have seen countless instances where employers are taking steps to foster an anti-harassment culture, there are unfortunately too many examples of shocking sexual harassment, particularly against junior female employees. It is particularly important to ensure senior management set a good example and are held to account.

“What qualifies as ‘reasonable steps’ will be an objective test, but one which takes account of the specific circumstances of the employer, such as its size and the sector in which it operates. There are several steps which are key for all employers to take, which include providing mandatory and comprehensive staff training, as well as having clear and up-to-date policies. Given that the potential compensation awardable in discrimination claims is uncapped, the threat of an uplift of up to 25% should an employer fail to fulfil this new duty should provide an additional incentive to comply.”