Accusations against film industry mogul Harvey Weinstein in 2017 sparked a mass movement of women across the world, gaining pace through social media and the ‘MeToo’ hashtag.
Sexual harassment at work, defined as unwanted conduct of a sexual nature which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment, is a form of unlawful discrimination under the Equality Act 2010. Yet a BBC survey in November 2017 found that 40% of women and 18% of men had experienced unwanted sexual behaviour in the workplace, showing sexual harassment at work remains widespread and commonplace.
As the law currently stands, employers are liable under the Equality Act 2010 for acts of sexual harassment by their employees, unless they have taken all reasonable steps to prevent the harassment. Liability is not always limited to the perpetrator of the offence: employers can be vicariously liable for acts of harassment committed by its workers, agents and, in some cases, third parties. Further, some forms of workplace sexual harassment can also amount to a criminal offence.
Relatedly, public consciousness around use of non-disclosure agreements (NDAs) has also been raised by the behaviour of businessman Sir Philip Green, when it emerged that he had used NDAs to buy the silence of at least five members of staff who accused him of sexual and racial harassment. While many businesses legitimately use NDAs and confidentiality clauses to prevent disclosure of confidential information, the scandal has exposed the scope for NDAs to intimidate whistleblowers and conceal cases of harassment and discrimination.
In February 2018, Parliament commissioned the Woman and Equalities Committee (WEC) to conduct an inquiry into sexual harassment in the workplace. Their report, published on 25 July 2018, found that the Government, regulators and employers are failing to tackle the issue. The WEC called on the Government to put prevention of sexual harassment at the top of their agenda. In addition, the WEC recommended steps to clean up the use of NDAs by requiring clearer drafting of confidentiality clauses, making it an offence to misuse such clauses and extending whistleblowing protections so that disclosures of sexual harassment to police and regulators are ‘protected disclosures’.
In its December 2018 response to the WEC report, the Government committed to implementing a new positive legal duty on employers to take effective steps to prevent sexual harassment in the workplace. They will work with the Equality and Human Rights Commission to introduce a new statutory code of practice on sexual harassment, setting out the steps that employers need to take to comply with this duty, with a possible 25% uplift in compensation when an employer breaches the code.
The Government also agreed that employers should have a responsibility to take reasonable steps to protect their staff from third party harassment (such as from customers and clients) when they know that their staff are at risk, and proposed to consult on how best to strengthen and clarify the laws in relation to third party harassment.
In relation to NDAs, the Government accepted that there needs to be better regulation and a clearer explanation of the rights that a worker cannot abrogate by signing an NDA. The Government has subsequently announced that new legal proposals will tighten the rules around the use of NDAs and confidentiality clauses, clarifying the law and ensuring that individuals are not prevented from speaking to the police, reporting a crime, or disclosing information during any criminal proceedings. They also propose to extend the law to ensure that workers receive independent advice on NDAs. A consultation on these proposals was launched on 4 March 2019, closing 29 April 2019.
What should employers be doing?
While the Government consults on implementing these new legal duties, employers would be advised to review the culture and behaviours in their own organisations. Organisations should already have an anti-harassment policy in place, including a clear process for raising a complaint. Line managers should be trained in implementing the policy and be confident in dealing with any concerns/complaints sensitively. Any evidence of discriminatory behaviour or harassment amongst staff should be investigated and swiftly acted upon, sending a clear message that such behaviour will not be tolerated. Employers should also review how and when they use NDAs/confidentiality provisions to ensure that when these are used, they are being used ethically and appropriately.