Extensive media coverage of the recent Harvey Weinstein and President's Club scandals, and the high-profile #MeToo movement, have shone a light on the issue of sexual harassment in the workplace.

Following this, the National Association of Schoolmasters Union of Women Teachers (NASUWT) has commissioned a survey of more than 1,200 school staff into sexual harassment in the education sector resulting in some worrying statistics.

More than 81% of teachers revealed that they had suffered sexual harassment at the hands of pupils, parents, colleagues and senior management with 42% of victims feeling unable to report the incidents. Reasons for not coming forward were that they thought they would not be believed, they would face negative consequences or that no action would be taken.

NASUWT is seeking to empower teachers to speak out and has called for the Government to take urgent action to ensure that its responsibility for safeguarding is taken seriously; requiring schools to record all incidents of sexual harassment and to have a clear policy for dealing with such incidents.

What amounts to sexual harassment?

Sexual harassment is defined in section 26(2) of the Equality Act 2010 (EA 2010) 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”.

Workers are also protected from being subjected to less favourable treatment for submitting to or rejecting sexual harassment (or harassment related to sex or gender reassignment) (s26(3) EA 2010). Employers should be mindful that they are liable for the actions of their employees in the course of their employment and they must take positive steps to ensure they uphold their duty of care to employees. Failing to do so may leave employers open to the threat of Employment Tribunal claims and damaging publicity.

Calls for reform: non-disclosure agreements and confidentiality clauses

On 27 March 2018, the Equalities and Human Rights Commission (the Commission) published a report 'Turning the tables: ending sexual harassment at work' recommending legal changes in order to better protect victims of sexual harassment at work. The report was supported by an online ‘call for evidence’ which mirrored the findings of the NASUWT survey, with around half of the respondents claiming that they had not reported their experiences due to the lack of any appropriate procedures in their workplace coupled with the belief they would not be supported.

Among the key recommendations proposed by the Commission are:

  • a mandatory legal duty on employers to take reasonable steps to prevent sexual harassment in the workplace
  • a statutory code of practice on preventing sexual harassment (25% uplift in tribunal compensation for failure to comply)
  • publication of employers’ sexual harassment policies online
  • increasing the time limit for employees to bring claims for sexual harassment to six months
  • restoration of third party harassment provisions
  • legislation to ban non-disclosure agreements which prevent disclosure of future acts of harassment, discrimination and victimisation
  • a statutory code of practice to deal with non-disclosure agreements or confidentiality clauses in a settlement agreements which validly prevent disclosure of allegations of past sexual harassment.

A year ago, or even just last summer, it would have been entirely acceptable for a standard confidentiality clause to be included in a settlement agreement preventing someone from speaking out about allegations of sexual harassment or making adverse comments about an employer. Now, such clauses are likely to be highly criticised and could result in an employer facing reputational damage for using them. There is a growing public sense of outcry about these apparent attempts to silence victims. Just as it is not deemed acceptable anymore to use these clauses in safeguarding cases, the tide seems to be turning in sexual harassment cases too.

We eagerly await any legislative changes that may stem from this call for reform by the Commission.

What should employers be doing now?

It is vital for employers to take action in order to prevent sexual harassment of any kind in the workplace as they may be held liable for the actions of their employees. Employers must show that they took all reasonable steps to prevent the behaviour (s109(4) EA 2010) in order to have a defence to any claim brought by sexual harassment victims.

Some practical steps that can be implemented in order to demonstrate that all reasonable steps have been taken include:

  • ensuring you have appropriate Equal Opportunities and Anti-Bullying and Harassment Policies which specifically include sexual harassment
  • making your workforce aware of the policies and how they will be implemented
  • providing sufficient training to managers and supervisors about what constitutes acceptable and unacceptable behaviour and how to deal with allegations that may arise
  • dealing effectively with any complaints raised
  • actively promoting a positive and open working environment in order that employees feel able to raise any complains/concerns they may have
  • consider very carefully the use of settlement agreements and/or confidentiality clauses where allegations of harassment have been made.