New sexual harassment guidance launched
High profile news stories about sexual harassment show that it is a problem across all sectors and organisations regardless of size. Recently published guidance by ACAS and the Equality and Human Rights Commission will help employers to understand their obligations under the Equality Act 2010 and what to do if a complaint is made.
In 2016, research by the TUC revealed that 52 per cent of women had experienced unwanted behaviour at work including groping, sexual advances and inappropriate jokes. That figure rose to 63 per cent for women aged 16 to 24. The recent revelations about sexual harassment show that it is a concern across all sectors and organisations regardless of size.
Considering the number of high profile news stories over the past few weeks and months concerning cases of sexual harassment, it perhaps comes as no surprise that organisations such as ACAS and the Equality and Human Rights Commission (EHRC) have recently launched new guidance on sexual harassment. Sir Brendan Barber, ACAS Chair, said "Our new advice aims to help people identify sexual harassment at work with tips on how to handle and report it. Organisations should take any complaint of this nature very seriously."
The Equality Act 2010 defines sexual harassment as unwanted conduct of a sexual nature with the purpose or effect of violating the dignity of a worker, or creating an intimidating, hostile, degrading, humiliating or offensive environment. It can take a number of forms such as verbal comments, unwanted physical contact, sexually natured emails and sexual gestures. It needn’t be intentionally directed at a specific person and the person conducting the sexual harassment need not have intended to do it. Sexual harassment can also occur when a worker is treated less favourably by their employer because the worker submitted to, or rejected unwanted conduct of a sexual nature, or unwanted conduct which is related to sex. For example, somebody is propositioned by their manager but rejects their advances and is then turned down for promotion. It is important to note the definition of sexual harassment under the Equality Act 2010 and not to forget that male employees can also be sexually harassed.
The ACAS guidance contains a helpful section for employers on "Handling a complaint of sexual harassment". It advises that the employer should make the reporting of a sexual harassment matter "as stress free as possible" and recommends simple ways to do this such as finding a private space to meet and making sure there is plenty of time to discuss the matter. At the discretion of the employer, it may be helpful to allow the worker to be accompanied by a friend or family member but employers must allow the worker to be accompanied by a work colleague or a trade union representative at a grievance meeting involving allegations of sexual harassment. It also recognises that being accused of sexual harassment is likely to be distressing and accused workers should also be offered support and sensitivity.
The EHRC guidance "Sexual harassment and the law: Guidance for employers" like the ACAS guidance, begins by setting out what sexual harassment is. It goes on to give more detailed information about how sexual harassment can come about, for example, that it could be unwanted conduct from someone of the same or different sex, it can be on a one off occasion, it doesn’t matter whether it is common to the working environment, it need not be directed at a person (it can be witnessed or overheard) and it explains the relationship between the purpose and effect of sexual harassment. If unwanted conduct is intended to violate a person's dignity or create and offensive environment, it does not matter whether it has that effect on the person. In reverse, if the unwanted conduct is not intended to cause distress, it can still have the effect of violating a person's dignity or creating an offensive environment. The guidance also helpfully lists a number of examples of sexual harassment.
The EHRC guidance has a section on employers' obligations which clearly sets out the duty on employers to protect their workers and take reasonable steps to prevent sexual harassment. All employers will be expected to have in place an "effectively implemented, monitored and reviewed" anti-harassment policy and an appropriate procedure for reporting harassment, protecting victims and taking action if harassment occurs. It also contains a clear guide on what an anti-harassment policy should contain which will be helpful for employers who are looking to update or improve theirs.
As with the ACAS guidance, the EHRC guidance contains a section on how sexual harassment complaints should be handled. As expected, there is overlap in what the two guides cover in this section. However, the EHRC guide contains a more descriptive account of the grievance process, for example stating that disciplinary action up to an including dismissal may be taken under the disciplinary procedure if the complaint is upheld, noting that the alleged perpetrator may be suspended as a precaution, giving guarantees to the complainant that they will not be disadvantaged by making the complaint and making adjustments to enable the complainant to participate in the disciplinary process without fear or victimisation.
Both sets of guidance draw attention to the fact that some types of sexual harassment can constitute a criminal offence, such as sexual assault, stalking, and indecent exposure. All criminal offences should be reported to the police. Employers must not forget that they must still investigate the complaint as an employment matter even if it is referred to the police. However, in cases where the police are involved, employers should liaise with the police regarding the disciplinary process and make sure a fair process is conducted.
We can expect sexual harassment to continue to be a high profile issue in the months ahead. The EHRC has written to large employers to find out what safeguards they have in place to prevent sexual harassment and warned that where it discovers evidence of "systemic failings", it will consider enforcement action. This could include investigating organisations which the EHRC suspects may be failing to take reasonable steps to protect employees. The EHRC also asked individuals to complete a survey on sexual harassment. The EHRC will report on its findings and make recommendations in early March 2018.