The Women and Equalities Committee has published a report on sexual harassment in the workplace recommending a five point plan for the government. This is a call to action following the high profile allegations of sexual harassment in the entertainment industry; the #MeToo campaign; and the report issued in March by the Equality and Human Rights Commission.
A BBC survey conducted in October 2017 found that 53% of women and 20% of men experienced sexual harassment at work. However, 63% of women and 79% of men failed to report the conduct.
The Committee’s report is highly critical of the current lack of protection for workers. It urges some radical reform and wants to ensure that tackling and preventing sexual harassment at work becomes a priority for the government, employers and regulators. The key recommendations are to:
- Put sexual harassment at the top of the agenda;
- Require regulators to take a more active role;
- Make enforcement processes work better for employees;
- Clean up the use of non-disclosure agreements; and
- Collect robust data.
Put sexual harassment at the top of the agenda
- Introduce a mandatory duty on employers to protect workers from sexual harassment in the workplace, enforceable by the EHRC and punishable by fines.
- Introduce a duty for public sector employers to conduct risk assessments for sexual harassment (as part of the public sector equality duty), and take steps to mitigate any risks.
- Reintroduce third party harassment, so that employers are liable if they have failed to take reasonable steps to prevent others (e.g. customers, clients) harassing their staff. This should not be restricted to cases where there were previous occurrences of third party harassment.
- Extend sexual harassment protection to interns and volunteers.
- Work with ACAS, the EHRC and employers on an awareness-raising campaign.
Require regulators to take a more active role
- Require regulators (e.g. HSE: EHRC; FCA) to put in place an action plan setting out what they will do to ensure that the employers they regulate take action to protect workers from sexual harassment in the workplace. Failure to do so would be a breach of the public sector equality duty.
Make enforcement processes work better for employees
- Support the mandatory duty to protect workers from sexual harassment with a statutory code of practice, setting out good practice guidance on matters such as training; risk assessments; reporting procedures (including anonymous reporting); specialist support for victims; how to investigate and record complaints; and what to do if the allegations might include a criminal offence. Tribunals should have the discretion to apply an uplift to compensation of up to 25% in harassment claims where there has been a breach of mandatory elements of the statutory code.
- Extend the time limit for bringing a sexual harassment claim in the employment tribunal to six months, with the clock paused while any internal grievance process is going on.
- Enable tribunals to award punitive damages in sexual harassment cases.
- Create a presumption of costs, so that the employer will ordinarily have to pay the employee’s legal costs if it loses a sexual harassment case.
- Introduce special measures in sexual harassment claims such as not being cross-examined by the alleged perpetrator; and specialist training on sexual harassment for tribunal judges.
- Introduce a statutory questionnaire, with consultation on whether there should be standardised questions for sexual harassment claims.
- Consider reintroducing tribunals’ powers to make wider recommendations to employers in discrimination cases.
Clean up the use of non-disclosure agreements
- Legislate to require the use of standard, government approved confidentiality clauses in non-disclosure agreements (e.g. contracts of employment and settlement agreements).
- Widen the definition of protected disclosures and prescribed persons under whistleblowing legislation to include disclosures of sexual harassment to the police and all regulators (including the EHRC and HSE) and to any court or tribunal.
- Make it a professional disciplinary offence for lawyers (and, in certain circumstances, also a criminal offence for the employer and the lawyer) to propose the use of a non-approved confidentiality clause.
Collect robust data
- Collect data on the number of tribunal claims submitted involving allegations of harassment of a sexual nature and the outcome of such claims.
- Commission large-scale surveys at least every three years to determine the prevalence and nature of sexual harassment in the workplace; and issue an action plan responding to the findings.
The report is clearly aimed at putting sexual harassment at the top of the agenda and it will be interesting to see the government’s response to the recommendations. In the meantime, employers are advised as a minimum to:
- Have a zero tolerance anti-harassment and bullying policy, which is effectively communicated to all staff and contains a clear code of conduct and transparent reporting procedures; and
- Deal with any sexual harassment complaints effectively and consistently.