#MeToo lessons for UK employers as Harvey Weinstein is sentenced

1. Preventing and responding to harassment – not a 'one-off exercise'

To avoid liability for harassment or victimisation by workers, employers must show that they have taken all reasonable steps to prevent such behaviour. The guidance emphasises that there is no prescribed minimum; it is an objective test of what a reasonable employer would do in the circumstances and which will be dependent on the size and nature of the employer, the resources available to it and the risk factors which need to be addressed within the particular employment sector. Employers must consider what steps they have taken to date and what further steps it is practicable for them to take. The guidance provides helpful examples and stresses that this is not a 'one-off exercise'.

2. Risk assessments

Risk assessments on harassment should be undertaken. These could be along the lines of the existing risk-management frameworks used for health and safety and assessments. Assessments hould identify the risks and the control measures identified to minimise the risks. Risk factors may include:

• power imbalances;
• job insecurity;
• lone working;
• the presence of alcohol;
• customer-facing duties;
• particular events that raise tensions locally or nationally;
• lack of diversity in the workforce; and
• workers being placed on secondment.

3. Third party harassment

The guidance specifically addresses the lacuna around third party harassment pointing out that 'harassment by a third party can be just as devastating for a worker as harassment by a fellow worker' and highlighting that employers who do not take reasonable steps to prevent or respond to third party harassment may be liable under other sections of the Equality Act or other legislation.

4. Develop effective anti-harassment policies

All employers are expected to have in place effective and well communicated policies and practices which aim to prevent harassment and victimisation. The policies should be monitored and their success regularly reviewed. Key questions include: should a separate policy be drawn up specifically for sexual harassment? Should separate strategy documents be prepared to accompany their policies, setting out what measures are being taken to tackle the different forms of harassment and taking into account the risk of different forms of harassment occurring in the particular workforce. The guidance sets out in detail what a 'good' anti-harassment policy should contain and addresses the need to consider how it interacts with other policies such as IT, communications systems and social media and, perhaps often overlooked, dress code.

The guidance recommends that policies are reviewed annually

5. Training

Workers should be provided with harassment training 'tailored towards the nature of the employer, the target audience and the employer's policy to maximise its impact'. All workers, including those without supervisory or management responsibilities, will require guidance on issues such as acceptable behaviour, recognising harassment and what to do should they experience or witness it. Supervisors and managers may need additional guidance on what to do upon receiving a report or complaint of harassment, investigating complaints, taking disciplinary action and supporting workers. The guidance highlights the need for training to capture third party harassment. Training to workers should be 'refreshed at regular intervals'.

Guardians

Trained workers should be made available to support individuals who have experienced harassment through the process of making a complaint. These could be members of the HR team or nominated workers identified by a title such as a harassment 'champions' or 'guardians'.

6. Raising awareness

Reinforcing the current climate of transparency, the guidance recommends that policies are publicised externally. Not only will this demonstrate the 'employer's commitment to transparency and tackling the issue', it will enable a worker to access a copy if for example they are off work with a stress condition related to their harassment and cannot access the internal system. It will also mean it is available to other workers, such as contract workers who may be unable to access internal systems.

Other recommendations include that the policies are:

• communicated verbally to workers during the induction process; and
• referenced in the employment contract, statement of particulars of other terms and conditions of work. It will be important for employers however to confirm that any policy does not form part of the terms and conditions of employment to avoid any provisions becoming contractual and limiting flexibility to adapt the policy as appropriate.

7. Transparency

Steps should be taken to ensure that complainants can be told about the outcome of their complaints, even though this may involve disclosing personal data about the accused. Privacy notices and other documents may need reviewing to cover the disclosure of disciplinary outcomes. The guidance suggests that external publication can help demonstrate an employer's commitment to transparency on harassment.

8. Evaluation

The effectiveness of policies should be evaluated by keeping centralised records which will enable trends to be identified and analysed. Staff surveys should also be undertaken 'on an anonymised basis to obtain as accurate a picture of harassment that is happening in the workplace as possible. Other recommendations include 'lessons-learned' sessions once complaints have been resolved and feedback from employees, for example during exit interviews. Any records or monitoring must be GDPR compliant.

9. Detecting harassment

The guidance provides that employers should proactively seek to be aware of what is happening in the workplace. There may be warning signs that harassment is taking place beyond informal and formal complaints, such as sickness absence, a change in behaviour, comments in exit interviews, a dip in performance or avoidance of a certain colleague. Employers should give workers every opportunity to raise issues with them, even where there are no warning signs of harassment.

10. Online or telephone reporting

Employers should also consider introducing an online or externally run reporting system allowing workers to make complaints on either a named or anonymous basis enabling complaints that would otherwise go unreported to be captured. It also provides an employer with the opportunity to give complainants information about the support and safeguards that can be put into place if they were to report the matter on non-anonymous basis, as well as enabling an employer to take action to address the matter even in cases where there may not be sufficient evidence to start an investigation due to the anonymity of the complainant, for example by issuing a reminder of the policy to workers and monitoring the area of the business affected.