EHRC will investigate sexual harassment committed by pupils and other third parties

Last month we explained how the new duty to prevent sexual harassment will impact schools and colleges once it comes into force on 26 October. We mentioned that the Equality and Human Rights Commission was going to publish guidance to help employers interpret that duty. It has now published draft guidance which contains some surprises that you need to know about.

Guidance

The draft guidance will be added to the EHRC's detailed technical guidance on sexual harassment and harassment at work. On the plus side, it is relatively short and easy to read. But if you were hoping for a comprehensive list of what to do to comply with the new duty you'll be disappointed. There's no list - just the principles that you need to apply with some examples thrown in for good measure.

The guidance begins by explaining that you have a duty to anticipate how and where your staff may be sexually harassed at work and review this on an ongoing basis. And, if sexual harassment has taken place, the preventative duty means you should take action to stop it from happening again. 

The guidance makes it clear that what is reasonable will vary from employer to employer and will depend on a number of factors including your size (in this context larger schools and colleges may have to do more than those who are smaller and have more limited resources), the risks present in working environment and the resources you have available. There are no particular criteria or minimum standards that you have to meet. 

So far so good. But the guidance then says that you should also consider whether your staff are likely to be sexually harassed by third parties. In the education sector, this means pupils, parents, friends or family of colleagues, delegates at conferences and anyone who may come into your school or college. 

Why does the guidance mention sexual harassment by third parties?

An employee cannot bring a claim under section 26 of the Equality Act 2010 if they are harassed by a third party at work. The provisions that previously allowed for these sorts of claims were repealed in 2013 and attempts to reintroduce protection (which were originally included in the Worker Protection (Amendment of Equality Act 2010) Bill) were removed during its passage through the Lords last year. 

Despite that the guidance is peppered with references to employers being under a duty to prevent workers from being sexually harassed by third parties. So, what is going on?

The wording of the relevant provision in the Act says this:

“An employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment” 

That is wide enough to include third party harassment. It's likely, therefore, that the EHRC is making it clear that it can take enforcement action against any employer that breaches the preventative duty. 

The Equalities and Human Rights Commission has the power to enforce the new duty by:

• carrying out investigations when it suspects that an organisation has breached the duty
• serving unlawful act notices, approving action plans and entering into legally binding agreements with organisations to address ongoing issues of sexual harassment and prevent future sexual harassment from occurring
• assisting with or intervening in certain disputes

The EHRC's enforcement arm is in the public domain and details of its investigations are available on its website.  

You must, therefore, factor into your assessment the risks your staff face from other people they come into contact with at work - particularly pupils/students.

What reasonable steps can schools and colleges take to prevent their staff being sexually harassed by third parties? 

We know that sexual harassment is a problem in many schools and colleges. The recent sexism in schools survey found that one in 10 female support staff in secondary schools had been sexually harassed, mainly by male pupils. 

The guidance does not provide a list of steps that it is reasonable for you to take. What is reasonable will vary from school to school and college to college. That said, there are some steps that we think most schools and colleges will need to consider:  

1. Find out how much of a problem sexual harassment is in your school or college. Ask your staff questions about their experience: are they are being, or have been, sexually harassed by pupils, parents and other third parties they come into contact with at work? How often does this happen? Have they reported it and if not, why not?

2. Once you have this information, find out if particular members of staff being targeted? Do they have common characteristics (such as their race, sex or age)? You may need to focus your training on these issues to begin with.

3. Introduce a system so that staff can quickly and easily report and record incidents. This will need to be made known to staff and be seen as safe (as in doesn't lead to victim blaming or retaliation). 

4. Make sure that line managers/ the senior leadership team know how to deal with a complaint appropriately and, if they witness sexual harassment, can confidently step in to address it.

5. Put in place a system to support staff who have been subjected to sexual harassment. 

6. Decide how you are going to educate your pupils/students about sexual harassment and who is going to deliver the training. Will the same approach be suitable for all age groups? You may need to bring in professionals to cover some aspects of it and you should consider putting in place a rolling programme of education which is reinforced via year group assemblies etc. Include cyber-bulling in your training.

7. Communicate your approach to parents/guardians and make it clear that you won't tolerate any sexual harassment of your staff by them, or their children, and how you will deal with incidents.  

8. Deal with issues promptly, consistently and in line with your agreed approach.

9. Monitor complaints and address specific issues via training and education.

10. Evaluate your progress on a regular basis and adapt your training/education as appropriate.

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