New EHRC Guidance - Harassment in the Workplace

The Equality and Human Rights Commission (EHRC) has published new guidance in relation to sexual harassment and harassment in the workplace. The EHRC explain that: “The evidence of the need for tougher action on harassment in the workplace is overwhelming.”

In the UK, the Equality Act 2010 prohibits discrimination and harassment because of or related to one or more of the nine protected characteristics (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation).

All employers have a duty of care to protect their workers and will be legally liable for harassment in the workplace if they have not taken reasonable steps to prevent it. There is no length of service requirement for an Equality Act claim in the Employment Tribunal – claims can be brought by job applicants, workers or employees, or ex-employees or workers. Claims can be very costly, from a reputational and financial perspective. Of course, discrimination and harassment is also bad for workplace morale and productivity, it is bad for attraction and retention. It is therefore crucially important that employers understand their obligations under the Equality Act 2010 and ensure that staff are well trained and know what is and is not expected of them.

The new EHRC guidance offers a legal explanation and practical examples of how to tackle and respond effectively to harassment, including:

  • Defining harassment and victimisation and providing examples of harassment and victimisation;
  • Explaining the effect of harassment in the workplace;
  • Explaining the responsibilities of employers; and
  • Dealing with how to prevent and respond to harassment.

In particular, the guidance recommends:

  • Effective policies and procedures. All employers will be expected to have in place effective and well communicated policies and practices which aim to prevent harassment and victimisation.
  • Having policies alone is not enough. The policies have to be inducted and clearly explained to staff. Having someone externally deliver training in relation to the policies can be more effective.
  • Detecting harassment. Employers should proactively seek to be aware of what is happening in the workplace. Employers should give workers every opportunity to raise issues with them, even where there are no warning signs of harassment, for example, through: informal one-to-ones; return to work meetings; performance meetings; an open door policy; exit interviews; and staff surveys.
  • Training. Workers should be provided with training which addresses each of the types of harassment along with training on victimisation.
  • Assessing risk. Employers should make an assessment of risks relating to harassment and victimisation. Existing risk management frameworks, traditionally used in the workplace health and safety context could be used for this process.
  • Addressing power imbalances. Harassment often takes place and goes unreported where there is a power imbalance in the workplace.
  • When an employer becomes aware that harassment is taking or has taken place, it is important that they deal with it promptly, efficiently and sensitively.

The full guidance can be found here. It is anticipated that a Statutory Code of Conduct will follow, and while Tribunals are not yet bound to follow this guidance, it will almost certainly be taken into account.

Employers should consider what steps they have taken to date and what further steps it is practicable for them to take. MacRoberts’ specialist employment law team is the longest established specialist team in Scotland. For more information or advice, contact jamie.meechan@macroberts.com or call 0141 303 1100 and ask to speak to a member of the employment law team.

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