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29 August 2018
The House of Commons Women and Equalities Committee (WEC) has published a report on sexual harassment in the workplace highlighting five points on which it is calling on the government to take action. The report follows an inquiry that was launched in February 2018.
The report makes clear that the WEC considers tackling sexual harassment in the workplace to be a business priority equal to ensuring compliance with anti-money laundering or data protection laws. The WEC is supporting a recommendation by the Equality and Human Rights Commission (EHRC) that employers be placed under a mandatory duty to protect their workers from harassment and victimisation.
This duty would be enforceable by the EHRC and supported by a statutory code of practice. Employers that breach the duty would face significant financial penalties – the aim being that the higher the potential penalties, the higher priority employers will attach to preventing sexual harassment.
The WEC also emphasises the need to protect employees from sexual harassment by third parties (eg, customers and clients), following the repeal of specific measures formerly contained in the Equality Act 2010, and to protect interns and volunteers who are not covered by the act.
The report recognises that there are different views on what is acceptable behaviour in the workplace, but states that a lack of awareness and consistency on how to challenge bad behaviour leads to victims not speaking up and perpetrators remaining unchallenged. The WEC seeks cooperation between the government, the Advisory, Conciliation and Arbitration Service (Acas), the EHRC and employers to provide consistent information about:
The WEC was disappointed that the Health and Safety Executive (HSE) did not consider it to be its duty to tackle or investigate sexual harassment in the workplace. According to the WEC, regulatory bodies should take greater responsibility and ensure that their members are taking actions to prevent sexual harassment and to protect their staff.
The report recommends that regulators hold employers to account if they fail to take reasonable steps and adopt enforcement procedures which make clear that sexual harassment by a regulated person is a breach of professional standards for the individual and the organisation. The WEC adds that the failure of regulatory bodies to address the issue of sexual harassment in their sector would be a breach of the public sector equality duty.
The WEC heard evidence that, although most employers have policies and procedures in place in respect of discrimination and sexual harassment, there is insufficient action to ensure that these are effective and adequate.
A statutory code of conduct would set out steps that employers must implement and this could be taken into account when considering whether an employer has complied with its duties. The WEC also contends that employment tribunals should have discretion to apply an uplift of 25% to compensation for failure to comply with the code (as is the case for failure to comply with the Acas code of practice on disciplinary and grievance procedures).
The WEC further addresses what it considers to be the issue of low remedies by recommending that employment tribunals be entitled to award punitive damages, with a presumption that the employer should pay employees' costs if they win the case.
In addition, the WEC recommends that the government review time limits – which are currently three months in all discrimination cases, including sexual harassment – with a view to allowing more time for alternative resolution mechanisms. The WEC also seeks to reinstate the use of questionnaires and the possibility for employment tribunals to make recommendations (both repealed in 2013).
Finally, the report suggests that similar systems to those which are available in criminal matters (eg, evidence on screen and lifelong anonymity) should be introduced in employment tribunals in order to protect sexual harassment victims.
While recognising that non-disclosure agreements (NDAs) are a useful tool in the employment relationship and are sometimes necessary to protect business interests, the WEC condemns their use in sexual harassment cases where the effect is to prevent a victim from being able to talk about the issue.
In March 2018 the Solicitors Regulation Authority (SRA) published a warning notice to solicitors which stated that "while NDAs can be legitimate, they must not prevent anyone from notifying the SRA, or other regulators or law enforcement agencies, of conduct which might otherwise be reportable".
The WEC calls for the use of NDAs to be "better controlled and regulated", particularly in respect of sexual harassment allegations. It recommends legislation on the use of standard and approved confidentiality clauses, which uses plain English and explains the "effect and limits of confidentiality clauses, including a clear explanation of what disclosures are protected under whistleblowing laws and cannot be prohibited or restricted". Further, the report contends that the definition of 'protected disclosure' should include disclosure of sexual harassment incidents to the police, regulators, courts and tribunals.
The WEC emphasises that there is a general lack of awareness and data on the extent of sexual harassment in the workplace. It considers that the government should collect data on the number of employment tribunal claims relating to sexual harassment and commission surveys every three years to "determine the prevalence and nature of sexual harassment in the workplace". According to the WEC, it is only by collecting data regularly that the authorities will be able to see whether any new measures are having a positive effect on reducing incidents of sexual harassment in the workplace.
The WEC's call to put sexual harassment at the top of the agenda for both the government and employers is timely, although it remains to be seen what effect the recommendations will have and whether specific legislative proposals will emerge in response.
A Lasting Change has found that most employers want to engage proactively with their employees about sexual harassment and have been concerned that employees across all sectors and at all levels have experienced some sort of sexual harassment which they felt unable to report.
One of the challenges that employers face is the fact that the formality of the grievance process often acts as a disincentive for raising concerns. While the WEC's recommendations are welcome, they focus on mandatory requirements and formal legislative changes. As such, there is a risk that increased formality will create an environment in which speaking up is even more difficult for victims. What works in one organisation may not be effective in another. The most proactive employers have been engaging directly with their employees about the sorts of system that they think would help to ensure that any future concerns are raised.
The government will now give careful consideration to the WEC recommendations. Meanwhile, as a minimum, employers should:
For further information on this topic please contact Ludivine Gegaden at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
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