In our first article in this series on preventing sexual harassment in the workplace, we looked at some of the issues to address in considering drafting new or amended policies. In this article, we look more broadly at demonstrating compliance with the new duty and evidencing that reasonable steps have been taken to prevent harassment at work.
More is more?
In an arena where the pressure on employers is increasingly to do more, a minimalist approach is unlikely to be viewed sympathetically. We are in an era that is focused on blaming, naming and shaming, so for many organisations the audience isn't just its staff or the Employment Tribunal system (should an issue arise), it's Joe Public, whether through the lens of the popular press or the Twitterati.
However, as is always the case with employment law, the position will differ from employer to employer and the differing risks in different types of business and sector. The key is knowing what approach is appropriate for the risk levels in your organisation, and of course that requires an understanding of those risks.
The Equality and Human Rights Commission has recently updated its guidance on harassment, including producing a new 8-step guide to preventing sexual harassment, which covers policies, engaging staff, risk assessment, reporting, training, dealing with concerns, third party harassment, and monitoring and evaluation. The Employment Tribunals will have regard to the Code and guide in considering whether reasonable steps have been taken to prevent harassment. However, for those employers committed to effecting change, more than a box-ticking exercise will be required.
Employee policies and staff training
As a general rule of thumb, well-drafted policies on their own are not sufficient to show that reasonable steps have been taken to satisfy a duty, whether a duty to prevent harassment or a health and safety duty or otherwise. What use is a policy if no one (or insufficient numbers of people) knows it exists? Policies need to be implemented, which means ensuring that they are read and understood by all those to whom the policy applies.
Evidencing this is likely to require some form of acknowledgment from each employee, such as signing or clicking something to say that they have read and understood.
However, we all know that some staff will click or sign without reading the policy! Further action may therefore be required, such as training and/or testing (perhaps with refresher training and/or testing) and reviewing whether stated procedures are complied with by managers if issues arise.
Going further
Taking policies and training a step further means tailoring the approach and materials so that they reflect the potential issues within the employing organisation.
Going further still could mean recognising that a perpetrator of workplace harassment does not have to be a member of the employer's staff. Risk assessments may help to identify priority areas for addressing risk and the most effective steps to take. For example, if third party harassment is a risk, will that be addressed by circulating a code of conduct to third party contractors, or is signage required, or something else?
Where policies, procedures, training and notices are in place, are they complied with? Do people know how to raise concerns? And in either case, if not, what action will your organisation take to rectify that? What happens in practice will overshadow what should happen in theory, and how organisations deal with anomalies and issues is increasingly likely to attract attention.
And further still
Whilst there is no "one size fits all" approach, we have set out below issues to consider when creating a positive culture in the workplace that prevents sexual harassment:
- Visible leadership is key in effecting change. Do the leaders in your organisation understand the duty and role model good behaviour? What is the risk if they do not?
- Does your organisation have a framework for dealing with bad behaviour? For example, do the values, vision, strategy as well as the policies and governance documents embed the duty to prevent sexual harassment in the workplace?
- Have you reviewed your operations at various levels to ensure that inappropriate behaviour can be identified quickly and dealt with? Many organisations rely on individuals to make complaints rather than have processes in place to monitor behaviour and identify when it falls short themselves.
- Do your employees understand the different ways to raise a complaint and what would happen if they did?
- What opportunities exist for employees to raise complaints outside of a formal reporting process such as grievances or whistleblowing?
- How often does your organisation carry out culture audits with specific questions on behaviour and sexual harassment?
- What protocols are in place for dealing with any allegations?
- Are your processes set up to deal with serious matters only and perhaps not smaller issues which may be the tip of an iceberg?
- Do you have a multidisciplinary team who review complaints and agree how they should be dealt with or does everything simply go to HR on the assumption that these are all HR issues?
- Who investigates the allegations? Are the investigators trained in how to deal with traumatised complainants and in particular know how to undertake sensitive questioning?
- What data do you retain regarding complaints of sexual harassment?
- Who reviews the data and are reports ever given to the leaders and/or the board?
- How do you deal with allegations of sexual harassment occurring outside of work between colleagues for example at staff parties or work conferences?
- How often do members of the HR, Compliance, Ethics, Audit, Inclusion and Diversity and Legal teams come together to review the challenges the organisation has in relation to poor behaviour?
- Is your organisation regulated? If so, are you complying with the regulator's expectations?
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
