Equality and Human Rights Commission release anti-harassment guidance

Organisations warned that out-of-work incidents such as ‘happy hour drinks’ and social media posts could still be grounds for sexual harassment.

The government’s equality watchdog, the Equality and Human Rights Commission (EHRC) have released new non-statutory guidance for organisations on preventing harassment at work. This detailed report focuses on several key areas, including what type of behaviour organisations ought to look out for and how they should respond to harassment complaints.

The guidance specifically provides an up-to-date list of behaviours that may constitute harassment, provided it is both unwanted and relates to an individual’s protected characteristic. These behaviours include:

  • spoken words
  • written words
  • posts on social media
  • physical gestures
  • facial expressions
  • mimicry
  • graffiti  

Whilst the guidance explains that there is no specific protection against third-party harassment under the Equality Act 2010, organisations are nevertheless encouraged to take reasonable steps to prevent this. After all, employers may still find themselves liable for discrimination at the hands of a third-party under other provisions of the Act. There is also a specific warning against the harassment of former staff, reminding organisations to maintain professional and respectful relationship with previous employees.

Recent cases have stressed that organisations can find themselves liable for behaviour that occurs outside of the workplace, providing it occurs in ‘the course of employment’. With this in mind, the EHRC’s guidance explains that whether or not acts committed outside of work are committed ‘in the course of employment’ will depend on the strength of the connection with work in each particular case.

Section 109 of the Equality Act states that organisations will avoid liability for harassment committed by a worker in the course of employment if they can show that they have taken all reasonable steps to prevent it. To justify that reasonable steps have been take, the EHRC advise employers to have effective and well communicated anti-harassment policies and ensure staff are given every opportunity to raise issues.

Whilst there have been calls in recent times to impose stricter rules on the use of non-disclosure agreements (NDAs), the EHRC remind organisations that such provisions must only be used where lawful. This means NDA’s, or confidentially agreements, can not be used to prevent workers from whistleblowing, reporting a criminal offence or complying with a regulatory duty.

When it comes to responding to complaints of harassment, organisations are encouraged to attempt an informal resolution in the first instance. If this proves unsuccessful, or an informal approach would be unsuitable, then a formal procedure will be required. Organisations are advised not to set a time limit when dealing with complaints, or disregard those where the incident in question took place some time ago.

To ensure objectivity during investigations organisations are encouraged to appoint investigatory officers who are not directly involved in the issue, preferably from different parts of the organisation who have less knowledge of the people involved. Importantly, if a worker raises a complaint but then decides not to take the matter any further, organisations should still take steps to ensure the matter is resolved.

Whilst this guidance does not necessarily announce anything new, it does combine the latest best practice advice into one place for organisations who may lack the desire, or resources, to keep on top of case law developments. Although this is not statutory guidance, and therefore does not need to be followed to the letter, organisations should strongly consider reviewing their own practices and adopting these measures to guard against harassment at work.

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