How should employers manage harassment in the workplace?

Suffering harassment at work can cause long-term harm for individuals but there are implications for employers too, particularly in relation to productivity and risk to reputation. Guidance has recently been published by the Equality and Human Rights Commission to help employers, workers and their representatives to understand the extent and impact of harassment. The Guidance also provides details of best practice for effective prevention.

Continued high profile allegations of harassment at work, and in particular, sexual harassment, across all types of organisations and sectors make this a key topic once again for employers and HR professionals in the year ahead.

Helpfully, comprehensive Technical Guidance on Sexual harassment and harassment at work has recently been published by the Equality and Human Rights Commission (EHRC). The purpose of the Guidance is to help employers, workers and their representatives to understand the extent and impact of harassment. It gives examples of what constitutes sexual harassment and harassment related to other protected characteristics. The Guidance also provides a detailed overview of the law and best practice for effective prevention. Published at the same time is the much shorter EHRC Guide Preventing sexual harassment at work: a guide for employers.

What is harassment?

The Equality Act 2010 (the Act) defines discrimination in terms of nine protected characteristics (age, disability, gender re-assignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation).

The Act prohibits direct discrimination, indirect discrimination, harassment and victimisation and prohibits three types of harassment:

• Harassment related to a protected characteristic.
• Sexual harassment.
• Less favourable treatment of a worker because they submit to, or reject sexual harassment or harassment related to sex or gender reassignment.

“Harassment” is defined in the Act as unwanted conduct related to a protected characteristic which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual.

For example, racial harassment includes any unwanted conduct having the purpose or effect set out above, which is related to colour, nationality, and ethnic or national origins and this can cover racist jokes or derogatory or stereotypical remarks about a particular ethnic group. Sexual orientation harassment includes, but is not limited to, outing or threatening to out someone as gay, lesbian or bi-sexual, shunning a colleague because of their sexual orientation or making homophobic remarks. Strictly speaking, for harassment purposes, pregnancy and maternity and marriage and civil partnership are not relevant protected characteristics but unwanted conduct relating to these could amount to sex/sexual orientation harassment in any event. In reality, most Harassment policies tend to cover all nine protected characteristics.

What is “sexual harassment”? Sexual harassment occurs when a person engages in unwanted conduct of a sexual nature that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual. Unwanted conduct of a sexual nature can take a number of forms such as sexual comments, suggestive looks, propositions and sexual advances, unwelcome physical contact, sexually explicit emails and sexual gestures.

Finally, an example of where 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, is the scenario where somebody is propositioned by their manager but rejects their advances and is then turned down for promotion.

Employers can be vicariously liable for their employees’ acts of harassment which take place during the course of employment (and this includes conduct at work social events) whether or not the actions were carried out with the employer’s approval or knowledge. Employers can however defend a claim for harassment if they have taken all reasonable steps to prevent the employees from carrying out those acts. This is called the “statutory defence”.

There are some key points to bear in mind in relation to harassment:

• A person can experience unwanted conduct from someone of the same or different sex and male employees can of course, also be sexually harassed.
• Unwanted conduct can be one-off and it does not need to be directed at a person, it can be witnessed or overheard.
• Harassment can occur in the workplace or outside of work at work-related events such as office parties or client events.
• Harassment is not always face to face. It can occur over the telephone, by letter, by e mail or on social media.
• There can be harassment by “association” with someone who has a particular protected characteristic or by the “perception” that someone wrongly has a particular protected characteristic.
• Individuals can be personally liable for acts of harassment they carry out during their employment.

It’s just banter, not harassment at work ……..

Often, allegations of harassment are denied by the perpetrator on the basis that their remarks were just banter and there was no intention to offend. The perpetrator may also argue that the complainant was being too sensitive.

It is important to note that if the unwanted conduct is not intended to cause distress, it can still constitute harassment if it has the effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Similarly, if the unwanted conduct is intended to violate a person’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment it does not matter whether it actually has that effect on the person. As for the effect on the complainant, whether or not the unwanted conduct does violate their dignity or create an intimidating, hostile, degrading, humiliating or offensive environment depends on the complainant’s perspective and whether their reaction is appropriate in the circumstances. Different people will find the same behaviour more serious than others might. The relative power, age, seniority and cultural background are all relevant in this context.

However, hyper-sensitivity on the complainant’s part will be taken into account and may result in a finding that harassment has not in fact occurred as illustrated by the decision in Munro v Sampson Coward LLP (Employment Tribunal January 2020). The firm marked birthdays by buying cards, which were then signed by members of staff. A particular issue in the case involved remarks about Ms Munro’s 50^th birthday and her being sent a 50^th birthday card.

A colleague of a similar age to Ms Munro made a comment along the lines of “it was your 50^th wasn’t it? You can’t hide it you know”. Ms Munro said she was utterly shocked by this remark which she felt was insensitive, humiliating and insulting. The Employment Tribunal took the view that Ms Munro’s sensitivity about her age appeared unusual and extreme. “The comment was trivial and had not been delivered maliciously. Whatever the precise words which had been used, they ought not to have been considered as words of harassment when viewed objectively.”

What is the scale of the problem and what are the consequences?

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.  A survey by the BBC in October 2017 found that around 50 per cent of women and 20 per cent of men had been sexually harassed at work or a place of study. In 2019, the TUC reported that 68 per cent of LGBT people had been sexually harassed at work while a TUC survey from 2016/17 revealed that 70 per cent of Asian and Black workers had experienced racial harassment at work in the previous five years.

However, whatever the reported statistics, the real figures are likely to be higher. This is because there is a very high level of under-reporting. In the BBC survey mentioned above, 63 per cent of women did not report the sexual harassment they had suffered and this increased to 79 per cent of men.  Indeed the EHRC states in its Guidance that the scale of harassment “is disturbing” and has been “largely hidden due to under-reporting“.

There are numerous reasons that people give for not reporting harassment. These include embarrassment, fear of repercussions, victimisation, concerns about not being believed, little confidence in the reporting procedure, concerns that the organisation does not take the issue seriously and a belief that alleged perpetrators, particularly senior staff, would be protected.

For the individual experiencing harassment, there can be a physical, emotional and/or mental impact. These range from difficulty in sleeping, headaches, stress, loss of confidence, low self-esteem and poor concentration. All these are likely to have an impact on an individual’s performance and/or attendance. There are implications for the organisation too. Increased sickness absence, poor performance and reduced productivity, low morale, negative impact on workplace culture, high staff turnover and risk to reputation are some of the consequences.

What does the EHRC recommend for preventing harassment in the workplace?

Because of the consequences of harassment on individuals and employers, the EHRC is of the view that employers must take action to change culture and behaviours and eradicate harassment in the workplace. It states that although there is “no prescribed minimum” about what an employer should do to prevent harassment, what is reasonable for them to do is an objective test. This will take into account the size and nature of the employer, its resources and risk factors which need to be addressed for the particular employer or sector. Section 5 of the EHRC Guidance sets out comprehensive steps to prevent and respond to harassment and these include:

• Having effective and well-communicated policies and procedures to prevent harassment and victimisation which should be monitored and their success regularly reviewed.
• Putting in place different policies for sexual harassment and harassment related to protected characteristics or, if there is only one policy, it should clearly distinguish between different forms of harassment.
• Ensuring all staff are aware of the policies and it gives examples of how this can be done, for instance, internal newsletters, staff meetings and physical or digital noticeboards.
• Detecting harassment by being alert to warning signs such as increased sickness absence or comments made at exit interviews.
• Training for staff on the different types of harassment, what to do if they experience it, and how to handle complaints.
• Addressing risks relating to harassment, for example, power imbalances, customer-facing duties and lack of diversity in the workforce.

Confidentiality agreements and Non-disclosure agreement (NDAs)

Finally, often mentioned alongside concerns about harassment is the misuse of confidentiality clauses in situations of workplace harassment or discrimination. In July 2019, the Government published its response to a consultation exercise on this issue. A key proposal relates to legal limitations whereby, no provision in an employment contract or settlement agreement can prevent someone from making any kind of disclosure to the police, regulated health and care professionals or legal professionals. Other proposals are that the effect and limits of confidentiality clauses need to be explained in clear, plain English to the individual and they will also need to receive specific advice on the limitations of confidentiality clauses in a settlement agreement in order for it to be valid. There is no information about timing other than the Government will legislate “when Parliamentary time allows”.

In October 2019, the EHRC published Guidance on the use of confidentiality agreements in discrimination cases involving harassment at work. The purpose of the Guidance is to clarify the law relating to confidentiality agreements in cases of discrimination in employment and to set out good practice in relation to their use. There is an extensive section about good practice and this includes, for example, that employers should consider on a case-by-case basis whether a confidentiality agreement is needed. Further, where confidentiality agreements are used, they should be worded to deal with the particular circumstances and not go beyond what is necessary and appropriate.

In February 2020, ACAS published extensive Guidance on Non-disclosure agreements. This covers what is meant by an NDA, when confidentiality clauses might be used and when they shouldn’t, how to tackle misuse of confidentiality clauses and good practice principles.

If you need advice on how to manage harassment in the workplace, contact a member of our employment team.