Checklist: Preventing Sexual Harassment in the Workplace

Practical steps for HR professionals based on EHRC guidance

Despite sexual harassment being unlawful for almost four decades, the #MeToo campaign and subsequent research highlighted that it remains a pervasive issue.

Research suggests that 40% of women and 18% of men have experienced some form of unwanted sexual behaviour in the workplace(1) and nearly 7 in 10 LGBTQ+ workers have been sexually harassed in the workplace(2). Overall, 29% of those in employment experienced some form of sexual harassment in their workplace or work-related environment(3).

Unfortunately, most victims don’t report such instances, fearing that they may not be believed or that speaking out may damage their working relationships and career prospects.

In January 2020, the Equality and Human Rights Commission (EHRC) released guidance to help employers address this problem. Shortly after a global pandemic hit and anecdotal evidence suggests that complying with the EHRC’s guidance slipped down the priority list for a lot of organisations. Now, four years on, the government is strengthening its response to sexual harassment by introducing a statutory duty on employers to prevent sexual harassment at work, based on the EHRC’s recommendations. This duty will come into effect on 26 October 2024.

A failure to comply with this duty could lead to enforcement action by the EHRC and any employee succeeding in a sexual harassment claim could have their compensation increased by up to 25%. In addition to the legal consequences, organisations should also consider the employee relations and reputational implications of non-compliance.
To comply with this duty, employers will need to show that they have taken reasonable steps to prevent sexual harassment at work. The preventative duty is an anticipatory duty recognising the need for employers to take steps to mitigate the risk of sexual harassment. There is no ‘grace period’ following the implementation of the duty; on 26 October 2024 organisations will either be compliant or they won’t be.

The EHRC’s updated guidance emphasises that what is reasonable will vary from employer to employer and that there is no prescribed criteria or minimum required. Relevant factors when assessing what is reasonable are the size of the organisation, sector, working environment and resources. We recognise, however, that employers will understandably require some guidance on the steps that are likely to be required, so Vista’s Employment Law specialists have compiled this Preventing Sexual Harassment at Work Checklist based on the EHRC’s updated guidance. It is intended to help HR professionals and business leaders assess and decide upon the most appropriate steps to avoid harassment in the workplace and ensure the safety of their employees.

The checklist is not intended to suggest that non-compliance with one of these steps will mean non-compliance with the overall duty. However, we do recommend that organisations consider each of these steps and assess whether, in the context of their organisation, they are reasonable and appropriate. It would be sensible to document this thought process in order to be able to explain any decision not to undertake a particular step.

Please note: The information in this checklist is correct at the time of publishing (25th October 2024).
References:
1. Uk Parliament sexual harassment in the workplace enquiry 2018
2. TUC research 2016
3. Government Equalities Office 2020 Sexual Harassment Survey

1. Develop an effective policy

Organisations are required to have an effective and well-communicated anti-harassment policy in place. Having a clearly communicated policy on preventing harassment during the course of employment is critical as it ensures that all employees are aware of the standards of acceptable behaviour and understand the procedures for reporting harassment. This clarity helps create a safe and respectful workplace environment, which is essential for maintaining employee trust and morale and protecting the business from risk.

Whilst the ERC suggest having a separate Sexual Harassment Policy as best practice, he policy does not necessarily need to be separate and could be included in a anti-harassment policy or a dignity at work policy but you should ensure that it meets the following requirements. Most organisations will already have a relevant policy; however, it should be cross-checked with the points below and, if non-compliant in any area, consideration should be given to updating the policy.

The policy should:

• Be developed in consultation with Trade Union, employee representatives or ERGs so that the views of the workforce are represented.
• Confirm the categories of people who are covered by it.
• Describe each type of harassment (sexual harassment, less favourable treatment for rejecting or submitting to sexual harassment, harassment related to a protected characteristic, and victimisation) separately and include examples of behaviours that will fall within each of the descriptions. The examples should be relevant to your organisation’s working environment and reflect the diverse range of people harassment may affect.
• Define the protected characteristics.
• Distinguish between bullying and harassment (if bullying is also covered in the policy).
• State that harassment will not be tolerated and is unlawful.
• State that harassment may lead to disciplinary action up to and including dismissal if it is committed:
• In any work situation;
• During any situation related to work, such as a social event with colleagues;
• Against a colleague or other person connected with the employer outside of a work situation, including on social media; or
• Against anyone outside of a work situation where the incident is relevant to their suitability to carry out the role.
• Set out a range of appropriate consequences and sanctions if harassment or victimisation occurs.
• State that aggravating factors, such as an abuse of power over a more junior colleague, will be taken into account in deciding what disciplinary action to take.
• Include an effective procedure for receiving and responding to complaints. The policy should provide informal and formal options for resolution, although employees should not be required to try informal resolution before raising a formal complaint. Informal resolution may involve the employee speaking directly to their harasser or asking an appropriate person (e.g. a manager, someone from HR, or a harassment ‘champion’ or ‘guardian’) to get support. The procedure for reporting harassment should:
• Not be too restrictive, e.g. employees should not be required to complete a specific form as a pre-requisite to having their complaint considered; and
• Provide multiple reporting channels for workers so that they can report the harassment to someone who they believe is objective.
• Address third-party harassment, e.g. by customers or clients. This section should include:
• That the law requires employers to take reasonable steps to prevent sexual harassment of workers in the course of their employment;
• That while an individual cannot bring a claim for third-party harassment, it can still result in legal liability when raised in other types of claim;
• That third party harassment can result in legal liability;
• That it will not be tolerated;
• That workers are encouraged to report it;
• What steps will be taken to prevent it, e.g. warning notices to customers or recorded messages at the beginning of calls; and…
• What steps will be taken to deal with instances and complaints and/or to prevent it from happening again, e.g. warning a customer about their behaviour, banning a customer, reporting criminal acts to the police, etc.
• State that victimisation or retaliation against a complainant will not be tolerated.
• Provide for different people at escalating levels of seniority to conduct the investigation, hearing and appeal hearing.
• Contain timescales for the different steps in the process which encourage a prompt (but also realistic) conclusion to each step in the process.
• Provide information about internal and external support and advice services available to the employee.
•  Include a commitment to review the policy at regular intervals and to monitor its effectiveness.
• Cover all areas of your organisation, including any overseas sites, subject to any applicable local laws which impose any additional requirements on your organisation.
• Ensure that it does not over-emphasise the issue of malicious complaints as this could discourage victims of harassment from complaining. Any statement to the effect that malicious complaints could result in disciplinary action must be carefully worded and emphasise that disciplinary action will only be taken if the allegation is both false and made in bad faith (i.e. without an honest truth in its belief).
• Interact well with other relevant policies, e.g. disciplinary policy, social media policy, e-mail and internet policy, etc.

2. Communicate the policy and engage with employees

It is not enough to have an anti-harassment policy in place; it must also be effectively communicated to employees. EHRC guidance suggests the following steps to ensure that employees are made aware of the policy:

• Publish the policy on an easily accessible part of your external-facing website (this will allow employees who are absent from work to view it easily).
• Ensure the policy is freely available to all workers and that they can view the policy privately, without having to request a copy of it.
• Reference the policy in employees’ contracts of employment, if no other steps to communicate the policies are being taken.
• Verbally communicate about the policy during the induction process, at which point employees should be given a copy of the policy or told where they can access it.
• Consider other ways in which the key messages in the policy can be communicated or reinforced, e.g. internal newsletters, notice boards, poster campaigns, staff meetings, reminders in advance of work social events, an annual reminder to staff, etc.
• Consider the linguistic diversity of the workforce and whether it would be appropriate to translate the policy into other languages.
• Share the policy with other organisations that supply workers or services to ensure that workers supplied to the employer are aware of the standards expected of them and how to report harassment.

3. Monitor and evaluate

Employers are also expected to monitor and evaluate the effectiveness of policies and actions. This could involve:

• Keeping a central (but confidential) record of harassment complaints so that trends can be analysed.
• Undertaking staff surveys which ask employees questions on an anonymised basis to obtain as accurate a picture of harassment that is happening within the workplace as possible. Staff surveys should:
• Ask employees whether they have been subjected to or have witnessed harassment and to describe those experiences;
• Describe the behaviours that amount to harassment, rather than just refer to harassment in the general sense, in case employees assume that certain behaviours do not amount to harassment;
• If they have experienced or witnessed harassment, ask employees to state whether they reported it;
• If they did not report harassment, ask employees to state why not;
• If they did report harassment, ask employees whether they were satisfied with the outcome and, if not, why not;
• Ask employees if they were to experience harassment in the future, whether they would feel able to speak up and, if not, why not; and…
• Ask employees whether they believe there are any steps the employer should be taking to address harassment at work.
• Holding ‘lessons learned’ sessions once complaints have been resolved.
• Taking into account feedback received through conversations with employees, e.g. at one-to-ones or exit interviews.
• Analysing the number of formal complaints of harassment received versus the number of instances of harassment that other information-gathering tools (e.g. staff surveys) have uncovered. If there is a significant difference, then that would suggest that further measures are required to encourage reporting.
• Reviewing the policy annually, taking into account the information that has been gathered through the means specified above.

4. Reporting systems and detecting harassment

The Turning the Tables study carried out by the EHRC found that half of the respondents who reported having experienced sexual harassment hadn’t reported it to their employer. There is therefore a need for managers to be proactive in identifying signs of harassment, e.g. an increase in sickness absence, tension in the workplace, avoidance of particular colleagues, etc.

The EHRC also recognises that employees are more likely to confide in their manager about harassment if they are given plenty of opportunities to do so. Those opportunities might include:

• Regular informal one-to-ones;
• Return to work interviews after sickness absence;
• Team meetings;
• Exit interviews; and
• Post-employment surveys.

The EHRC also states that employers should consider:

• Introducing an online or externally-run telephone reporting system which allows workers to make complaints on a named or anonymous basis. Although anonymised complaints are more challenging to resolve than named complaints, it is better to receive some details of alleged harassment than no information at all.
• When an anonymous complaint is received:
• The helpline operator can provide the employee with details of the support and safeguards that can be put in place to encourage them to make a named complaint.
• The employer can still use that information to take some action, e.g. monitoring, re-communication of the anti-harassment policy.

5. Training

Training should be provided to all employees and should be tailored depending on the employee’s role within the organisation. The EHRC guide states that:

• Training should be provided to all employees on the different types of harassment and victimisation. It should ensure that workers understand each of the different types of harassment and victimisation and what they should do if they experience it, including how to complain about it.
• Training for those with management or supervisory responsibilities should also include guidance on issues such as acceptable behaviour, recognising harassment, dealing with reports or complaints of harassment, investigating complaints, taking disciplinary action and supporting victims.
• Additional training should be delivered to employees in the organisation who will support an individual through the process of raising a harassment complaint. These could be employees from HR or other nominated staff who may have titles such as harassment ‘champions’ or ‘guardians’. The training should include guidance on how to deal with the particularly sensitive issues involved in different forms of harassment related to different protected characteristics, e.g. racism.

The EHRC also makes the following further points regarding training:

• Training should be tailored towards the nature of your organisation and the target audience.
• Training should include information on third-party harassment if your employees could potentially be exposed to this given the nature of their work. The training should ensure that employees understand what they should do if they are exposed to third-party harassment in accordance with the relevant policy and procedure. This will vary according to the role the employee does, e.g. whether it is working in dealing with customers over the phone in a call centre or serving members of the public in a bar.
• Consideration should be given to the most effective means of delivering the training.
• Records of who has received training should be kept.
• Training should be refreshed at regular intervals.

6. Assessing risks relating to harassment

Employers should be proactive in identifying the potential risk factors that could allow harassment to fester with the organisation. The EHRC updated guidance says that “employers are unlikely to be able to meet the requirement of the preventative duty to take reasonable steps to prevent sexual harassment of their workers, if they do not carry out a risk assessment”. Examples of risk factors given the guide are power imbalances, job insecurity, lone working, the presence of alcohol, and customer-facing duties. EHRC guidance states that employers should:

• Carry out a risk assessment, similar to a health and safety risk assessment, in order to identify the risk factors that are present within the workplace (e.g. night working, lone working, an insecure or casual workforce, the presence of alcohol or gendered power imbalances) and create an action plan containing control measures to minimise the identified risks; and
• Where gendered power imbalances are a risk factor, implement measures to address these imbalances, such as taking steps to improve the diversity of the workplace and the management population, providing unconscious bias training for those involved in recruitment, and offering training on diversity and inclusion.

7. Taking action and responding to harassment

Complaints of harassment should be:

• Handled promptly, efficiently and sensitively.
• Dealt with by managers who are independent and objective.
• Concluded promptly and in line with the timescales set out in the policy unless there are exceptional circumstances. Employees should be kept updated of the progress that is being made with the investigation and provided with explanations for any delays.
• Handled confidentiality. All witnesses who are spoken to as part of the investigation should be told that the matter is confidential and that a breach of confidentiality is a disciplinary offence.

8. Third party measures

Employers should take steps to prevent harassment from third parties. This may include:

• Undertaking checks and references for contractors
• Ensuring T&Cs with 3rd parties provide that they undertake such checks
• Displaying warning signs in premises about sexual harassment, where appropriate

9. Review your actions

Compliance with the duty is not a one-off exercise; there is an ongoing requirement to protect employees from sexual harassment and, therefore, the organisation’s approach will need to be kept under close review. Employers can consider the effectiveness of their approach to managing the risk of sexual harassment by:

• Reviewing formal and informal complaints of sexual harassment to identify trends and considering whether practices could be enhanced or adjusted to mitigate the risk of sexual harassment occurring in the future.
• Carrying out regular staff surveys as referenced above and comparing the findings of the survey to the volume/nature of complaints raised. If the former suggests that sexual harassment is occurring more often than is suggested by the latter, then this is an indicator that further steps are required to encourage reporting.

As above, regular training and review of the anti-harassment policy will also be required.

10. Other steps:

• Employers should consider preparing separate strategy documents to accompany their anti-harassment policies, setting out the measures they will take to tackle the different forms of harassment.
• Arrangements should be put in place to ensure that agency workers are protected (there is more information on the appropriate steps in the EHRC guide which employers should consider if they provide or engage agency workers).
• Historic complaints should be treated seriously and investigated. Employers should not assume that because a long time has passed since the alleged harassment, there will be no relevant evidence.
• Following the resolution of a complaint, consider whether steps are required to prevent the complainant from being victimised.

Vista also provide market-leading training for managers in this space, check out how we do it for other clients here, and an example of what a training session could look like for your company here. Drop us a line if you have any questions, we’d love to hear from you.

Disclaimer: The information and advice provided in this blog are correct at the time of publishing. Employment law is subject to change, and while we strive to keep our content current and accurate, we recommend consulting with one of our legal professionals or checking the latest regulations via official sources for the most up-to-date information. Vista Employer Services is not responsible for any actions taken based on the information provided in this blog.