Insights

On active duty: employers' anti-harassment obligations

4/11/2021

Over the summer, the Government published its response to a consultation on reforms of the law concerning workplace harassment.  The most significant changes proposed are:

  • employers will have a proactive duty to prevent sexual harassment or harassment which is related to a protected characteristic; 
  • the Government will (re)introduce protections against harassment by third parties (such as customers), although it's not clear if this will take the same form as the previous '3 strikes and you're out' rule which was repealed in 2013; and 
  • time limits for bringing discrimination claims are likely to be extended from the current 3 months to 6 months. 

Although it's not entirely clear what form the new preventative duty will take, nor when it is likely to take effect, employers can usefully start preparing now.   Many employers reported an increase in harassment and intimidation of staff during the COVID-19 pandemic (particularly in retail premises), while remote working and use of technology appears to have contributed to workplace harassment in other sectors.  Even as the law stands today, a failure to prevent workplace harassment could lead to claims by staff, including claims for personal injury and constructive unfair dismissal. So what steps can employers take to prevent harassment? 

Unfortunately, there is little conclusive evidence as to what strategies are effective to prevent harassment (as opposed to addressing it after it happens).   Of course, employers should have in place policies on workplace equality, harassment and bullying, and should ensure that these are reviewed regularly and brought to the attention of staff.   They should also ensure that staff receive regular training on workplace equality and what constitutes bullying and harassment.  And they should also have in place effective mechanisms for addressing complaints and dealing with harassers (including disciplinary action/dismissal).   However, many employers do all of this and still face harassment complaints.   So what other steps can they take?

The EHRC's technical guidance suggests a useful framework.  Employers should undertake an assessment of the risk of harassment, in the same way as they assess health and safety risks, and then take steps to mitigate the risks.  Employers should identify the risk factors in their workplaces and take steps to reduce those risks.  Factors such as power imbalances, job insecurity, lone working, the presence of alcohol and customer-facing duties may all increase the risk of harassment.   Steps to reduce the risks will need to be tailored to the risks identified and might include changes to working arrangements, guidance and training on handling difficult customers, guidelines on (or even banning) alcohol at workplace events.   

Employers should also ensure that they gather information to assess the effectiveness of these risk-reduction strategies.   It's tempting for an employer which receives few formal grievances to conclude that it doesn't have a problem with harassment, but in our experience many complaints are never raised formally, sometimes until one complaint opens the floodgates.  Employers should use one-to-ones, staff surveys, exit interviews and other opportunities to gather feedback on the effectiveness of their anti-harassment strategies.  

There's no one-size-fits-all solution to tackling harassment - but employers which take steps to put in place robust risk assessment and review mechanisms now will reduce the harm to their business  - and are likely to be ahead of the game when the new requirements come into force. 

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