The government recently published a consultation on harassment in the workplace (which we reported on briefly here), to explore some of the concerns raised by the Women and Equalities Select Committee in their 2018 report. In this update, we focus on the new statutory Code of Practice on sexual harassment and harassment at work which was recommended by the Select Committee. The government confirmed in this consultation that it plans to introduce a Code to assist and support employers to comply with the law.
Why do we need a Code?
UK law already sets out some protections against sexual harassment in the workplace. Employers will be liable for harassment carried out by their employees at work, unless they have taken ‘all reasonable steps’ to prevent it.
In the wake of the #MeToo Movement, there has been a significant shift in culture, with #Metoo empowering people to speak up about inappropriate conduct and there has been significant evidence that suggests workplace sexual harassment is widespread. The government acknowledges in the consultation that although sexual harassment in the workplace has been prohibited by law for decades, it "persists at a startling rate in our society".
This suggests that many employers are not taking adequate steps to prevent sexual harassment from happening – and this may be because they do not know how to do this effectively. Evidence that was given at the Select Committee's inquiry suggested that in sexual harassment claims, employers rarely use the defence of having taken ‘all reasonable steps’ to prevent harassment because it is not clear what this requires them to do.
Through this consultation, the government aims to find a way to ensure that harassment law is better respected and that employers prioritise the prevention of sexual harassment. Introducing the Code would help employers to better understand what is expected of them by law. In particular, it will give guidance on what might amount to taking ‘all reasonable steps’ to prevent harassment, and how employers can ensure they have the right preventative measures in place.
When will the Code be introduced?
No timescale has been given yet. The Equality and Human Rights Commission will first release technical guidance later this year which is intended to form the basis of the Code.
What is likely to be included in the Code?
It is intended that the Code will specify the steps that employers should take to prevent and respond to sexual harassment, and which could be considered in evidence when assessing whether they have taken 'all reasonable steps' to prevent harassment.
The Select Committee made a number of recommendations as to what the Code should cover, including:
- Reporting systems and procedures and what employers should provide as a minimum, including guidance on anonymous reporting and any relevant data protection issues that arise: As harassment victims often fear being belittled or seen as a troublemaker for raising the issue, having a confidential, independent helpline may help improve employer practice and employee confidence in reporting harassment. Anonymous and confidential reporting is being used in other countries and some employers here are already using anonymous hotlines, in partnership with external organisations, as a first step to reporting
- How to investigate and record complaints, including a presumption that all complaints should be investigated unless there is a compelling reason not to: The way that allegations of sexual harassment are investigated by employers is central to showing that they are serious about preventing sexual harassment in their organisation
Support for victims, including access to specialist support and steps that should be taken to prevent victimisation of complainants
Training, induction, risk assessments and other policies and practices
What should employers be doing?
It is essential that employers have suitable policies, systems and practices in place to help prevent sexual harassment and to ensure that reports of such behaviour are dealt with appropriately. That said, these will only be effective if they are supported and championed by leaders - and if managers and workers receive specific and relevant training and support.
Employers that are looking to improve the workplace culture, behaviour and conduct in their business should look into, and consider implementing the Select Committee's recommendations which are likely to form the basis of the Code. Taking these steps would also mean that, if a sexual harassment claim is brought, employers are in a better position to show that they have taken 'all reasonable steps' to prevent harassment.
The consultation closes on 2 October 2019