EHRC guidance on sexual harassment signals need for a radical cultural shift

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You can have all the policies, procedures and good intentions in the world, but if they are not put into practice and reviewed on a regular basis, how can they be considered genuine?

The #MeToo movement is as prominent today as it was during its inception in October 2017. While fallen movie kingpin Harvey Weinstein is busy attempting to move his trial out of New York, our Equality and Human Rights Commission (EHRC) has focused its attention on the much-anticipated Sexual Harassment and Harassment at Work – Technical Guidance.

What does the guidance say?

The 82-page document covers the areas expected. From setting out the scale and effects of harassment in the workplace to simply defining the terms harassment and victimisation, it’s user-friendly and easy to navigate. A good start.

Perhaps most crucial is section five: 'Taking steps to prevent and respond to harassment'. Everyone within the workplace expects to be treated with respect, dignity and without prejudice, so what can you do as an organisation to prevent harassment, protect your workers and meet your legal responsibilities as an employer?

Going above and beyond the rule book

It’s not enough to simply have policies and procedures in place. If your workplace culture, managers or stakeholders do not uphold or exemplify what the policies aim to achieve it renders them useless. Businesses need to deal with any underlying issues with how their staff interact with each other, rather than simply point to a policy as proof of having addressed the issue. They should be monitored, reviewed and supported with training.

Detecting harassment

The guidance helpfully addresses how employers should be aware of what is happening in the workplace day to day. Extending the responsibility of detection to all members of staff helps to reinforce an open culture.

There may be warning signs that harassment is taking place, such as a diligent worker being suddenly absent for a period, or an employee who historically performs well now performing below par. Workers should be encouraged and given every opportunity to raise issues, and the guidance suggests consistent face-to-face meetings and communication with staff can help to facilitate this. It’s easy to hide behind an email or even a telephone call, but exit interviews, informal one-to-ones and performance meetings or mentoring programmes are all ways to become aware of what is happening on the ground.

Malicious complaints

The guidance addresses the fact that employers may already have policies that emphasise malicious complaints will result in disciplinary action. However, over-emphasising that fact may deter individuals from coming forward. So how do you strike the balance?

Businesses should make it clear – in their policies and how they operate in practice – that they consider the vast majority of complaints to be made in good faith. Even if a thorough and fair investigation finds that an individual has not been sexually harassed, the individual should not thereafter be branded a liar, untruthful, or subjected to any detrimental treatment within the workplace.

Businesses must make it clear that disciplinary action will only be taken if it is found both that the allegation is false and made in bad faith.

Bringing policies to life

The biggest barriers within the workplace usually involve perceived apathy and lack of concern.

While the guidance is a helpful tool, employers will also benefit from real examples, including data and success stories of the positive impact businesses have experienced when addressing sexual harassment complaints, or promoting diversity and equality within their culture. Perhaps there is a reluctance to share them, but there must be some cases out there worthy of a wider audience to learn of the undoubtedly positive and impactful benefits.

You can have all the policies, procedures and good intentions in the world, but if they are not put into practice and reviewed on a regular basis how can they be considered genuine steps to prevent and respond to harassment? Lead by example. Ensure your managers, stakeholders and senior team members are invested, on board and willing to change where necessary. Fostering a culture that ensures receptiveness to change will ultimately help to bring policies to life.

Ingrid McGhee is a partner and employment law specialist at Weightmans law firm

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