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3 common mistakes with anti-harassment policies and 1 thing you can do today to address them

March 14, 2024

From 26 October 2024, employers are under a new duty to take reasonable steps to prevent sexual harassment of their employees.

Just one of the many steps that employers should be taking now, to prepare to meet this new duty, is to dust down their anti-harassment policy and check that it remains fit for purpose. If it contains any one of these three common mistakes, it is not fit for purpose:

1. The policy addresses (only) the law

“We are committed to providing a working environment free from harassment.

Harassment is any unwanted physical, verbal or non-verbal conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. A single incident can amount to harassment.

Unlawful harassment may involve conduct of a sexual nature (sexual harassment)”

While the legal definition is clearly and accurately stated, the implication is the employer is concerned with unlawful harassment (I’ll refer to this as Harassment) and uninterested in behaviours that are perceived as unprofessional, objectionable, disrespectful or otherwise inappropriate, or which create, for example, an unpleasant or unhappy environment (I’ll refer to this as Objectionable Behaviour, misconduct falling short of Harassment). In other words, the employer is concerned only with minimum legal compliance. However, if Objectionable Behaviour is addressed promptly and appropriately, it can help to prevent matters developing into Harassment, which is far more serious and harmful to all concerned and the organisation.

2. The reporting procedure doesn’t have the complainer in mind

“If you wish to make a formal complaint about harassment, you should submit it in writing to your line manager or the HR Department.” 

In one sentence, an employer is telling its employees:

‘Don’t bother me until matters have reached crisis point.’ The issue here is that this approach does not encourage early intervention, helping to avoid Harassment and creating a more inclusive and respectful workplace.

‘You decide if the behaviours you are complaining about constitute Harassment.’ Without guidance from their employer as to the difference between Objectionable Behaviour and Harassment, an employee may feel it has little choice but to label the conduct as Harassment if they want their employer to take them seriously when the behaviours may not, in fact, meet the legal definition of Harassment. Sadly, this inevitably invites a finding of ‘not upheld’ with no action being taken by the employer, when some form of action should be taken to address the Objectionable Behaviour. This does nothing to help create an inclusive and respectful workplace.

• ‘How you would wish to raise your concerns are unimportant to me.’ There are a variety of reasons why an employee might be hesitant to put their concerns about Harassment (or Objectionable Behaviour) in writing, or to raise them with either their line manager or HR. By failing to offer alternative avenues for concerns to be raised, the employee could be discouraged from speaking up and the problem could get worse.  

3. Language and tone of the policy implies the complainer better be right

“Any staff member who deliberately provides false information or otherwise acts in bad faith as part of an investigation may be subject to action under our Disciplinary Procedure.”

This is only one example of how the use of language and tone can scare employees into not raising issues. For instance, more often than not, when allegations of Harassment (or Objectionable Behaviour) are made, it’s one person’s word against another. There may not be witnesses or corroborating evidence.  Where there’s then an imbalance of power or authority between the complainer and the person being complained about, the complainer may fear that they’ll be perceived as a troublemaker. Arguably, if an employer needs to make a statement such as this, there’s a problem with, at best, its other policies or, at worst, its culture.

The one thing employers can do now

Don’t dust down existing policies and try to repurpose them. Rip them up and start afresh, remembering always the following key points:

• The key priority is prevention not redress.  

• Policies require legal language, but they should also make it clear that all complaints are welcome because the employer sees this as an opportunity to make the workplace better for everyone.

• Words and tone can make a big difference as to how an employer’s commitment to tackling workplace issues are perceived and the confidence employees feel in raising concerns.

It’s also important to review other important policies and procedures to ensure that the message is consistent. For example, a disciplinary and dismissal policy and procedure should make it clear that it encourages employees to come forward (through a number of different methods available) about anything they’ve experienced (or witnessed) that makes them unhappy, for any reason, and a decision will be taken on the best remedial measure – one that is customised or appropriate to the behaviour and aims to both correct and prevent it from happening again.

Struggling to find the right words?

We can prepare your customised policy for you as well as review your other important policies to make sure that you are ready to meet your legal obligation on 26 October 2024. We can also provide training on the prevention of sexual harassment, including how to spot any potential issues and how to deal with issues that come to an employer’s attention.

To register your interest email: Donna.Reynolds@blackadders.co.uk

Nicola Burns

Nicola Burns

Director of Operations

Marketing Team

+44 1382 342217

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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