EHRC Issues Guidance on Workplace Harassment and Sexual Harassment

The UK’s Equality and Human Rights Commission (EHRC) has issued technical guidance setting out a detailed explanation of the law relating to harassment and sexual harassment, and offering employers practical recommendations for preventing and responding to such issues. Though nonbinding, tribunals will be able to refer to this guidance as a framework for deciding harassment cases. Employers should therefore treat this guidance as instructive when updating and developing their own antiharassment policies and procedures.

The EHRC issued “Sexual Harassment and Harassment at Work: Technical Guidance” (the Guidance) on 15 January 2020. Intended to be an “authoritative and comprehensive guide to the law and best practice in tackling harassment”, this Guidance has been published to advise workers on the relevant law (and their employer’s obligations) and sets out a framework for tribunals to use when deciding harassment cases. In addition, the Guidance contains a range of practical recommendations for employers on preventing and responding to harassment and sexual harassment in the workplace.

The Guidance is accompanied by two other documents. First, “Preventing Sexual Harassment at Work: A Guide for Employers” is a short guide for employers detailing seven key steps that employers should take to tackle sexual harassment in the workplace. Second, a letter addressed to leading employers and industry groups from the EHRC’s chief executive, Rebecca Hilsenrath, declares that “it is time for all employers to step up action against misconduct and protect their staff from harassment” and observes that “this issue is not going to go away and if we are going to create working environments where no one is ever made to feel unsafe or threatened, then we need a dramatic shift in workplace cultures.”

For now, the Guidance remains nonbinding, and the key elements of its recommendations will be familiar to employers who have already taken steps in recent years to update their antiharassment policies and procedures. However, as the Guidance can be considered by tribunals as evidence of best practice in this area (and may form the basis for a statutory code of practice in due course), employers should be cognisant of the specifics of the EHRC’s key recommendations and look to ensure alignment with their policies and procedures where possible.

Key Recommendations

Pursuant to Section 109(4) of the UK’s Equality Act 2010, an employer is not liable for harassment committed by its staff in the course of their employment where the employer can show it took all reasonable steps to prevent the offending behaviour.

In light of this, the Guidance offers insight to employers as to the actions they can take to rely on this defence. This insight is particularly valuable, given that what constitutes “reasonable steps” has rarely been examined in the case law outside very precise fact patterns.

As a preliminary point, it should be noted that while the Guidance is instructive, an employer’s failure to meet a particular recommendation should not be considered fatal: as the Guidance makes clear, what count as reasonable steps is an objective test that varies depending on the size and nature of the employer, the resources available to the employer, and the risk factors that need to be addressed within the particular employer or sector.

In the short guide that accompanies the Guidance, the EHRC recommends seven practical action points that employers should look to implement in order to prevent and deal with sexual harassment at work:

• Develop an effective antiharassment policy
• Engage staff with regular one-to-ones and have an open-door policy
• Assess and mitigate risks in the workplace
• Consider using a reporting system that allows workers to raise an issue anonymously or in name
• Train staff on what sexual harassment in the workplace looks like, what to do if workers experience it, and how to handle complaints
• Act immediately when a harassment complaint is made
• Treat harassment by a third party just as seriously as that by a colleague

The EHRC develops and further particularises these recommendations in the Guidance. All employers, even those who have recently updated their antiharassment policies and procedures, are likely to find within the recommendations opportunities to refine and hone their current practices. Of particular note are the Guidance’s comments on:

• Anti-harassment policies. At Clauses 5.1 to 5.18, the Guidance sets out a detailed examination of what effective antiharassment policies should contain, how they should interact with the employer’s other policies, the extent to which they should be circulated across workplaces, and how often they should be evaluated. Recommendations that may go beyond current standard practice for employers include Clause 5.7 (relating to statements about malicious complaints) and Clauses 5.9 to 5.10 (relating to the accessibility of policies).

• Arrangements for agency workers. At Clauses 5.25 to Clause 5.30, the Guidance explores how employers can ensure that the engagement of agency workers does not compromise their people standards as regards harassment.

• Confidentiality agreements. At Clause 5.31, the Guidance acknowledges that there is a place for employers to use confidentiality agreements (otherwise known as NDAs), but also cautions against their use except in cases where they are “necessary and appropriate” in order to promote a culture of transparency. This aligns with recent commentary from the UK government in this area[1], and illustrates that confidentiality agreements remain a topic of continued scrutiny from key stakeholders. Indeed Advisory, Conciliation and Arbitration Service (ACAS)—an independent employment relations service that provides support to stakeholders—published new guidance on the use of NDAs and confidentiality clauses on 10 February 2020 (the ACAS Guidance). The ACAS Guidance recommends that confidentiality agreements and clauses are used less routinely by employers and that, where they are used, they are more tailored to each individual and clearer on the range of permitted disclosures. The ACAS Guidance also calls on employers to implement clear, consistent, and regularly reviewed NDA policies, and to take steps to ensure workers are given a reasonable time to consider, and are allowed to ask questions or seek advice on, the terms of an agreement before signing.

• Addressing power imbalances. At Clause 5.32, the Guidance suggests actions by which employers can reduce the power imbalances in the workplace that often allow for harassment to take place. Suggested actions include the appointment of harassment champions or guardians and the introduction of development programmes or mentoring networks for underrepresented groups who are susceptible to being harassed.

• Informal resolution. At Clauses 5.35 to 5.38, the Guidance highlights the need for employers to recognise the possibility for the informal resolution of complaints, while carefully balancing this with the need to take appropriate action in more serious cases.

• Taking action upon receipt of a request not to take action. At Clauses 5.49 to Clause 5.52, the Guidance sets out advice for handling sensitively the often delicate scenario whereby an employee raises a complaint but subsequently requests that the employer take no further action.

The Future in This Area

By publishing this guidance, the EHRC continues to demonstrate its intent to build upon the momentum triggered by the #MeToo movement to improve workplace culture across the United Kingdom. Indeed, this guidance builds upon the EHRC’s previous public activities on this issue, including its “Turning the tables: Ending sexual harassment at work” report published in March 2018, which recommended the introduction of a statutory code of practice on sexual harassment and harassment at work and the placing of a mandatory duty on employers to take reasonable steps to protect workers from harassment.

Going forward, the EHRC may play a key role in seeing these suggestions implemented. As noted in its Strategic Plan for 2019-2022, the EHRC has identified the “strengthen[ing]” of the “laws preventing and responding to sexual harassment in the workplace are strengthened” as a part of reaching its key aim of improving workplace environments across the country.

It remains to be seen whether the United Kingdom will legislate in this area. Much will depend on the outcome a Government Equalities Office consultation on sexual harassment in the workplace that closed in October 2019 and explores, among other things, whether the current laws on this issue provide sufficient protection, whether there are any gaps in the law, and what else can be done at a more practical level to ensure people are properly protected at work.

As such, with the findings of the consultation pending, employers should closely review the Guidance and take appropriate steps to ensure that their existing policies and procedures align with its recommendations. Indeed, even employers who have recently taken action in this area should note the EHRC’s explicit warning that updating their policies and procures to align with the Guidance is not a “one-off exercise”: continued review as to whether there are any additional steps that can be taken as the workplace, workforce, and technology change is a must.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

London
Louise Skinner
Matthew Howse

[1] Read our previous LawFlashes on this topic: UK Government Responds to Proposals to Prevent Misuse of NDAs in Harassment and Discrimination Cases; UK Women and Equalities Committee Calls for Immediate Government Action to Prevent Misuse of NDAs; and UK Proposes to Tighten Rules on Nondisclosure Agreements and Confidentiality Clauses