Harassment in retail: Sainsbury’s signs EHRC agreement in lieu of investigation

In 2019, we conducted an anonymous survey of 1,000 retail staff which identified that 1 in 10 have experienced inappropriate or unwanted touching of a sexual nature. Further details of our findings can be found here.

Preventing sexual harassment is a particular focus for the Equality and Human Rights Commission ("EHRC") and earlier this month, one household name, Sainsbury's, entered into a legally binding agreement with the EHRC which requires them to take all reasonable steps to prevent employees from committing harassment. The steps Sainsbury's must take include:

• preparing a discrimination guide for managers and employees;
• providing staff with information on how to deal with harassment;
• putting more effective training in place for its staff; and
• providing regular progress reports to the EHRC.

The EHRC considered using their enforcement powers against Sainsbury's after an employee won an employment tribunal claim against them for sexual harassment. Sainsbury's were asked to provide the EHRC with evidence of its safeguarding procedures for employees. Progress had been made since the tribunal claim, however, the EHRC felt that further improvements could be made and instead of starting an investigation, offered Sainsbury's an agreement.

What can employers do to prevent harassment in the workplace?

An employer will be liable for harassment or victimisation in the workplace that is committed by staff, unless the employer can show that they took all reasonable steps to prevent such behaviour. There is no prescribed minimum that an employer must achieve in order to meet their responsibilities in this regard. It will vary depending on the size and nature of the organisation, the resources available and risk factors within particular sectors.

In January, the EHRC published guidance for employers on dealing with harassment in the workplace. This is a good starting point for all businesses. The key points from the guidance are:

• Employers must have effective and well-communicated policies to prevent harassment in the workplace. Regular reviews of these policies should be undertaken to ensure their effectiveness;

• Malicious complaints should not be overemphasised in the policy, as research by the EHRC has shown that most reports are made in good faith;

• Other company policies should be reviewed to ensure that they support and reflect the anti-harassment policy, particularly dress code policies, disciplinary policies and policies on the use of IT and communications equipment in the workplace;

• Employers should seek to understand what is happening in their workplace and be alive to warning signs that harassment or victimisation may be present. Implementing an employee support programme which enables employees to make anonymous complaints should also be considered;

• Employers should provide training to their employees. In particular, where employees are at risk of third-party harassment, training should be provided on how to deal with such issues, i.e. if a customer is being verbally abusive, what steps the employee can take. Training should be refreshed at regular intervals;

• Employers should promote transparency in the workplace and staff should be encouraged to speak out about discrimination and the root causes of it. Confidentiality agreements must only be used where it is lawful to do so; and

• Employers should consider what steps they can take to reduce power imbalances within their businesses.

What should employers do in response to a report of harassment?

It is important that employers handle reports of harassment sensitively, seriously and without delay, in accordance with established company procedures. The EHRC confirms that a good procedure should:

• Tell workers how to make a complaint and set out multiple reporting channels;

• Set out a range of approaches for dealing with harassment;

• State that victimisation and retaliation in relation to a report will not be tolerated; and

• Provide contact details for internal and external support and advice services to the complainant and alleged harasser.

If your business needs legal advice, contact our retail and consumer legal team.