HM Insights

How can an employer’s policies help prevent and deal with sexual harassment in the workplace?

It has been over a year since the #MeToo movement went viral on social media in an attempt to promote public debate on the widespread prevalence of sexual harassment in the workplace. But has the ongoing debate changed what is going on in the workplace? Not if a recent poll which has found that employers could do more to protect their employees is anything to go by.

In September this year, ACAS commissioned a YouGov poll to determine whether the widespread public debate on sexual harassment in the workplace was translating into effective action from employers. The findings from this poll were published in ACAS’s new policy paper on ‘Sexual harassment in the British workplace’.

One of the key findings was that line managers are still seen as the all-important gateway to disclosure and reporting of an incident. In addition most respondents stated that “better training” (60%), “changes to the wider culture” (46%) and “updating existing policies and procedures” (44%) were the most effective means for preventing sexual harassment in the workplace.

Consequently, here is our brief guide to what employers can do to best support their employees and prevent incidents of harassment happening in the workplace:

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Have a comprehensive set of policies and procedures

A comprehensive set of policies, which set out the standards of behaviour expected of all staff is advised for all employers. These policies will set out the way in which staff can raise concerns and the potential consequences for an individual who breaches the requirements of the policy. The main policies an employer should have in place are policies that deal with disciplinary and grievance procedures, equality issues and bullying and harassment complaints.

Employers should also make sure that staff receive copies of the company’s policies when they begin their employment or are otherwise readily accessible to every employee (not, for example, only employees with computer access). Staff should also be informed when any updates are made to the company’s policies.

Equality and awareness training

Whilst policies are an essential starting point, they are not sufficient on their own. Employers should follow up and implement policies with appropriate training.

It is always good practice for employers to hold regular training sessions for staff on equality and diversity issues. This will help staff understand the company’s policies and the standards of behaviour staff are expected to show in the workplace. Training sessions will also ensure that staff are aware of the content of the policies, because inevitably some staff may not always read the content of the policy document. Appropriate records of who has attended the training should be kept.

Equality and awareness training will allow for policies to be discussed and any updates to be brought to the attention of staff. Staff training will also provide clarification in relation to any questions staff may have. Training can also help staff understand the concepts contained in the policies better by going beyond what is actually covered in the policy.

Preventing sexual harassment of employees by third parties

A company’s equality policy or bullying and harassment policy can apply to everyone who might work with employees, customers or clients. This should be explicitly stated within the policy document itself. Consequently, self-employed contractors providing services to a business and working alongside employees should be provided with a copy of the policies, or those parts, which apply to them. Self-employed contractors should also be informed when they commence work with the business that certain policies of the business apply to them.

In certain organisations, it may be appropriate for a policy to cover what staff and managers should do if someone outwith the control of the organisation (such as a member of the public) takes harassing action.

Employer protection against employment tribunal claims

The reasonable steps defence is available to an employer who is accused of harassment in the workplace. This defence requires the employer to demonstrate that it took all reasonable steps to prevent the harassment from occurring. Reasonable steps would likely include:

  • the employer having policies in place;
  • the employer keeping the policies up-to-date on a regular basis;
  • the employer making sure that all staff are aware of what is contained in the policies;
  • the employer providing appropriate training to managers; and
  • the employer dealing effectively with a harassment complaint when one is made.

However, it is probable that the above would be minimum considerations and an employer would have to evidence more to show that it met the statutory requirements of taking "all" reasonable steps to prevent harassment.

Potential changes to the law

It is likely that, given the intense media coverage the #MeToo movement has received over the past year, changes to the legislation in this area could be on the horizon. Organisations such as The Women and Equalities Committee and the Equality and Human Rights Commission have called for the introduction of a mandatory duty on employers to prevent sexual harassment in the workplace. These potential changes to the law could also be accompanied by a statutory code of practice.

Get in touch

The law in this area is likely to evolve over the coming years as more revelations come to light about instances of sexual harassment that have happened in the workplace. Consequently employers will be expected to take greater action to prevent sexual harassment happening in the workplace.

If your business requires support in this area, or you would like us to review your current policies, then please contact a member of our team.