New priorities: refocussing on harassment

Back in January 2020, when Covid-19 was an ominous but still distant rumble, the Equality and Human Rights Commission (EHRC) published technical guidance on sexual harassment and harassment at work (the Guidance). As we noted in our article at the time, this Guidance is both substantial and significant.

Only weeks later, the world’s collective focus moved to the pandemic. Managing this crisis has since been an all-consuming priority for many employers. Now, as workplaces are firmly open again and the distancing between employees at work is diminished, it is timely to look again at both the Guidance and issue of harassment more generally.

As noted in the introduction to the Guidance, harassment at work can have a destructive impact on the physical and mental health of individuals and a corrosive impact on culture of the workplace. The scale of harassment – across all protected characteristics – is rightly described as “disturbing”. As employers navigate new challenges and potential workplace tensions, avoiding harassment and working through the recommendations in the Guidance should be prioritised.

The law on harassment

A short reminder of the underlying legal principles. Although we understand “harassment” to refer to a wide range of offensive behaviour – whether it be demeaning, humiliating or aggressive conduct – the term has a specific legal definition within discrimination law.

Under the Equality Act 2010, three types of harassment are unlawful:

• harassment related to a “protected characteristic” (age, disability, gender reassignment, race, religion or belief, sex and sexual orientation);

• sexual harassment; and

• less favourable treatment of a worker because they submit to, or reject, sexual harassment or harassment related to sex or gender reassignment.

Harassment occurs when a worker is subject to unwanted conduct that is related to a protected characteristic and has the “purpose or the effect of violating the worker’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker”. For conduct to be “sexual harassment”, the unwanted conduct must be a “of a sexual nature”.

To avoid liability for harassment committed by a worker in the course of employment, an employer must show that it took “all reasonable steps” to prevent the harassment. Understanding what this statutory defence means in practice is crucial to both avoiding legal liability and creating the right culture in the workplace.

Recent developments relating to harassment

The Guidance by no means sits alone. Since January 2020, there have been a number of important legal and socio-political developments relating to harassment. These underline why the prevention of harassment in the workplace should sit firmly at the top of employers’ priority lists.

The reasonable steps defence

In February 2021 the Employment Appeal Tribunal (EAT) issued an important decision on the reasonable steps defence to harassment and what this really means for employers in practice (Allay (UK) Ltd v Gehlen). The EAT confirmed that this requires significantly more than a simple box ticking exercise.

The employer in this case had a number of relevant policies in place, and the manager complained about had attended both diversity and bullying and harassment training .This, however, was not enough to prevent the employer from being liable for the manager’s harassing behaviour. The training was deemed by the Employment Tribunal (ET) to be “stale” and no longer effective in preventing harassment. This conclusion was upheld by the EAT, which made the useful observation that the less effective the training, the shorter its longevity. Providing a one-off one-hour course on appropriate behaviour in the workplace is unlikely to be enough. Issues of behaviour at work are complex and often hotly debated and it is vital that the training is relevant, current and discussion-provoking.

This case confirmed that in addition to looking at what steps were taken and whether those were reasonable, an ET will look at whether there was a further step that should reasonably have been taken by the employer to prevent harassment. For example, as in this case, a refresher of the training. This assessment will factor in costs, practicality, and the likely effectiveness of that step. Crucially, however, this does not have to be something that would necessarily have prevented the harassment in question. If the ET concludes that the employer could have taken a further reasonable step, their defence will fail even if this extra step may not have worked.

Conflict of beliefs in the workplace

In June 2021 the case of Forstater v CDG Europe and others hit the headlines. This was an important ruling by the EAT on when a political or religious belief will be protected under the Equality Act. It confirmed that only views that are a “grave violation” of the rights of others, and “tantamount to a destruction of those rights”, will not meet the relevant test of being worthy of respect in a democratic society. The EAT decided that gender critical beliefs (which many trans people and others find offensive) were potentially protected by discrimination law.

The decision is important in relation to the prohibition of harassment. The EAT made very clear that even if an individual holds and expresses protected views, he or she is subject to the same prohibition on discrimination and harassment as everyone else. Employers must continue to ensure that they provide a safe working environment for trans people - the judgment was by no means a green light to harassment.

The decision is also a reminder that conflicting beliefs may be protected within the workplace, and employers must ensure that workers are not subjected to bullying or offensive behaviour by those who may not share those beliefs. It is certainly conceivable that strongly held views arising out of the pandemic – such as beliefs relating to vaccination for example – may result in this kind of tension. Rather than focussing on whether a belief in itself is likely to have legal protection, the focus should be on ensuring that conduct related to that belief does not constitute harassment.

Government’s response to sexual harassment consultation

In July 2021 the government published its response to the consultation on sexual harassment, which we wrote about in more detail here. Critically this pointed to a new proactive duty to “take all reasonable steps to prevent sexual harassment”.

The existing principles behind the reasonable steps defence look likely to underpin this new duty. The key difference, however, is that employers would need to be more proactive.

Currently, although measures to avoid harassment must be taken before the alleged act in order to be factored into the defence to a claim, this still relates to after the event liability. The proposed new duty is preventative. It envisages potential accountability for employers that fail to take these steps even if no incident has occurred (although it remains unclear who will be able to enforce this and how).

The government has undertaken to work with the EHRC to develop a Statutory Code of Practice, to complement the January 2020 Guidance. This will have greater legal force than the guidance, and will help employers to engage with their duties and understand whether they have taken all reasonable steps.

Signing of new ILO Convention

On 8 March 2022, the UK ratified the International Labour Organisation’s Violence and Harassment Convention. This means that it will become binding in 2023. The Convention recognises the universal right to a workplace that is free from violence and harassment, and arguably offers wider protection than the Equality Act. As the UK must regularly report to the ILO on the implementation progress, it seems likely that government will now have to follow through on its commitment to harassment reform.

The details of the upcoming Code remain unclear but we expect a draft to be published for consultation, potentially later this year. What is clear though, is that employers should start preparing for this fundamental shift in harassment prevention now and benchmark current practice against the January 2020 Guidance.

What practical steps should employers be looking at now?

We know that understanding what may constitute reasonable steps to prevent harassment is not always a precise science. The EHRC Guidance makes numerous recommendations of practical steps employers should be taking or considering, discussed in detail here. These include measures such as training, guardianship programmes and a central complaints database.

Whilst training programmes and diversity policies may already be part of many employers’ armoury, one interesting proposal in the Guidance is sexual harassment risk assessments. The need to proactively identify hazards and risks of violence and harassment is also central in the ILO Convention. This could be an indication of what we may see in the forthcoming Code.

Although the proactive duty to prevent harassment remains a proposal at this time, we would suggest that conducting a risk assessment is a process that employers can usefully undertake now. The underlying principles are not novel - employers are required by law to protect their employees, and others, from harm. Indeed, sexual harassment should already be something that is considered from a health and safety perspective. But undertaking a thorough and structured analysis of the specific risks around sexual harassment is likely to go further than many existing risk assessments.

Over the past two years, risks assessments relating to health and safety have become even more ingrained in the culture of the workplace. This experience can usefully be applied to the issue of harassment. Indeed, over the course of the pandemic employees have become accustomed to their employers taking a range of steps to protect their health and safety. It is conceivable that even away from the Covid arena, workers’ expectations as to what must be done to keep them safe may now be heightened.

Like any risk assessment, this will be a three-step process involving the following:

• identifying hazards and risk factors;

• considering how likely that hazard or risk is to cause harm; and

• assessing what action can be taken to eliminate or control that hazard.

The first step is to identify the particular risks. Of course this analysis is very context specific, but the Guidance identifies a number of factors that may heighten the risk of sexual harassment:

• power imbalances

• job insecurity

• lone working

• the presence of alcohol

• customer-facing duties

• particular events that raise tensions locally or nationally

• lack of diversity in the workforce

• workers being placed on secondment.

Whilst a useful starting point, this list is not exhaustive. Another factor to consider (which for obvious reasons would have been less pressing in January 2020 when the Guidance was published) is the impact of remote and hybrid working. The reduction in day to day contact between managers and their teams is likely to mean managers are less attuned to how their reports are, and what is happening within their team. Red flags of harassment may well have become easier to miss.

Employers should therefore consider carefully what risks their own workforce face, or even particular roles within that workforce, and identify the steps that can be taken to address those.

Proactivity and Prevention

Whilst the Guidance acknowledges the damage done by harassment, it offers an important reminder that it is not inevitable - “Employers can and must take action to change culture and behaviours and eradicate harassment in the workplace”.

The watchword here is proactivity. This is not just how employers deal with harassment, but the steps taken to predict and avoid it. Targeted risk assessments are one useful tool and will help to focus on prevention rather than defence. Canvassing the views of their workforce using listening exercises and focus groups will help employers identify key the risk areas for their staff and will encourage open discussion about what is and is not acceptable behaviour in the workplace. Running “speak up “sessions for staff, highlighting the support available to them within the business should they experience poor behaviour, will also send a clear message that this issue is taken seriously in the organisation.

Sessions for leaders and managers, identifying the risk areas and highlighting their role in modelling the right behaviour, are also crucial steps that employers can take to proactively reduce the risk of these issues arising. Regular, quality training for leaders, managers and all staff is critical to showing the employer has taken all reasonable steps to prevent harassment.

The training team at Lewis Silkin work regularly in this area, devising appropriate training programmes highlighting issues around harassment and bullying and promoting respect in the workplace to staff, managers and HR teams. If you would like to have a conversation about how we can support you with training, listening exercises, or HR consultancy services in the area of anti-harassment, diversity and inclusion, please contact our training team at ILoveTraining@LewisSilkin.com or your usual Lewis Silkin contact.