New Guidance On Eliminating Workplace Sexual Harassment – Employee Rights/ Labour Relations

This guidance sets expectations and best practice
for eliminating and dealing with sexual harassment in the
workplace. It covers issues ranging from legal obligations to
actions to help prevent sexual harassment. A template policy is
also included setting out the steps employers should take, in
conjunction with trade unions and employees, to create workplaces
where sexual harassment does not occur and is effectively responded
to if it does.

In the context of research showing how harassment remains
prevalent and often goes unreported, the guidance puts the onus on
employers to be more proactive and inquisitive about what is going
on in their workplaces, rather than simply having policies and
dealing with complaints. It also aims to reflect the modern world
of work, with references to social media harassment and online
portals for reporting sexual harassment.

Legal guidance

Much of the guidance explains what sexual harassment is and when
employers and employees can be liable for it, using many examples.
A couple of areas are particularly worth noting:

• The reasonable steps defence. An employer is
  not liable for sexual harassment committed by a worker in the
  course of his or her employment if it can show it took all
  reasonable steps to prevent the harassment. While it is advisable
  to take such steps, there is no actual legal requirement in
  Northern Ireland to do so.

The guidance refers to how this position is changing in Great
Britain. With effect from 26 October 2024, a new proactive legal obligation will apply on
employers to prevent sexual harassment. The UK Equality and
Human Rights Commission is also expected to update its code of
practice and guidance outlining the steps that employers in Great
Britain will be expected to take. Employers will need to comply
with the updated code and guidance to be in the best position to
defend claim. While this change doesn’t apply in Northern
Ireland, employers in Northern Ireland, with employees in Great
Britain, should prepare for this change.

• Bystander approach. The guidance states that
  promoting and providing training on the ‘bystander
  approach’ is a positive step which employers could take to
  build a workplace free from sexual and other forms of harassment.
  This approach encourages people to take ownership of a problem and
  speak up when they witness potentially dangerous situations, such
  as inappropriate jokes among work colleagues.




• Harassment by third parties including clients.
  The guidance acknowledges that employers in Northern Ireland have a
  legal duty to prevent third-party sexual harassment, for example,
  by a customer or client. Specifically, an employer is liable if it
  knows that the employee has been sexually harassed in the course of
  their employment on at least two other occasions by a third party,
  and not taken reasonable steps to prevent it from happening to the
  employee again.

This legal duty doesn’t apply in Great Britain, despite
recent proposals for its re-introduction. This doesn’t mean
that employers in Northern Ireland with employees in Great Britain
can ignore third party harassment. As we explained in this article, an employer still risks being
liable for discrimination or harassment itself if it ignores
complaints about harassment by third parties and continues to put
vulnerable employees at risk. And irrespective of legal risks, it
simply is not good practice (and reputationally damaging) to fail
to prevent staff from being harassed at work.

Steps employers are expected to take

The guidance sets out actions which the Labour Relations Agency
and the Irish Congress of Trade Unions think employers should be
taking or at least considering. Here are some of the notable
recommendations:

• Culture. For an employer to create a workplace
  culture that minimises the risk of sexual harassment it should
  assess and recognise the extent of the problem or potential for
  there to be a problem, for example, gathering data from survey,
  grievances, exit interviews and tribunal complaints.




• Have a sexual harassment policy. Such a policy
  should demonstrate that the organisation takes a zero-tolerance
  approach to sexual harassment, with allegations of sexual
  harassment being investigated and dealt with appropriately
  according to an employer’s disciplinary policy. A template
  policy is included as part of the guidance. Employers should review
  their own sexual harassment policies in light of this template or
  consider adopting this template.




• Sexual harassment reporting systems. Employers
  need to create a safe working environment where reporting is
  encouraged. Employees should feel confident to report sexual
  harassment and that they will be believed and taken seriously. They
  should also know who to report sexual harassment to and how.
  Employers should consider using anonymous reporting tools to enable
  workers to report sexual harassment such as telephone helplines or
  online portals.




• Training. Employers should train all workers
  about sexual harassment, which should form part of induction
  procedures. Managers should also be trained on their
  responsibilities in maintaining appropriate standards of behaviour
  in the workplace and the procedures to follow where an employee
  reports sexual harassment.




• Sexual harassment risk areas. Employers should
  be alert to work environments in the organisation where sexual
  harassment would be more likely to occur. They should consider
  areas where there may be power imbalances between individuals, for
  example, inequalities between men and women, abuse of power between
  senior and junior staff, or where staff are in a customer facing
  role or working in isolation or in isolated locations.




• “Top down” support. Employers should
  ensure that leaders at all levels visibly communicate their
  commitment to gender equality and a zero-tolerance approach to
  sexual harassment. This should be reflected in formal statements,
  brought to the attention of all employees by other means such as
  during regular training, in staff meetings, in the employee
  handbook and integrated into the appraisal process by recognising
  inclusive behaviours.




• Third parties. Employers should take
  reasonable steps to protect employees against third party
  harassment, by, for example, making customers and suppliers aware
  of the organisation’s equal opportunities and sexual harassment
  policies, and requiring them to follow them.




• Workplace champion. The guidance states it can
  be useful to have a nominated workplace champion, confidential
  Dignity at Work Advisors or Harassment Officers to monitor sexual
  harassment issues, oversee training, and offer support to employees
  experiencing sexual harassment. This provides an opportunity for
  workers to speak in confidence with a trained person in the
  organisation perhaps before making a formal complaint.




• Monitor effectiveness. Employers should
  monitor all sex discrimination and sexual harassment strategies to
  ensure that they are working effectively. They should also consider
  quantitative and qualitative data from confidential staff/Equity,
  Diversity and Inclusion pulse surveys or staff engagement groups to
  confirm whether the policies and strategies to prevent sexual
  harassment are perceived by staff to be equitable and
  effective.

Use in legal proceedings

While the new guidance is not legally binding, it can be into
account by Industrial and Fair Employment Tribunals and used by
claimants in evidence. We anticipate it will be referred to
regularly in sexual harassment claims. Employers would be well
advised to start preparing by benchmarking their current approach
to sexual harassment against the guidance.