EHRC Slams ‘Toxic’ Sexual Harassment Culture

Towards the close of 2017, as the #MeToo movement was gaining momentum, the EHRC began soliciting evidence about sexual harassment in the workplace and how employers deal with it. Between December 2017 and February 2018 they asked individuals to tell them their experiences of sexual harassment, whether they reported it to their employer and what the employer did about it. At the same time, they asked employers about their policies and procedures for dealing with sexual harassment. The results are set out in their report, Turning the Tables: ending sexual harassment at work.

The responses were eye-opening: workers reported damage to their careers and to their mental and physical health caused by ‘corrosive cultures which silence individuals and normalise harassment’.

Nearly all the people who reported being harassed were women. This, perhaps, reflects the typical power hierarchy in the workplace – the most common perpetrator was a senior colleague.

Nearly twenty-five percent of incidents were committed by customers or clients (many, although not all, in the hospitality industry) – and workers reported that employers were particularly bad at dealing with these cases. If the experiences detailed in this report are representative, a distressing number of managers appear to view sexual harassment by customers as a normal and inescapable part of the job.  

Around half the individuals said they did not report the harassment to their employer. Reasons for this included a belief that it wouldn’t be taken seriously, belief that the perpetrator would be protected by senior management, a fear of victimisation or lack of suitable reporting procedures. Men described particularly high barriers to reporting, including macho workplace cultures and the perceived ‘stigma’ of being a male harassment victim.

It seems that those failing to report might have a point, however, as in around half the cases that were reported, the employers failed to take any action. Respondents described employers downplaying complaints or telling them it was a misunderstanding. Many were treated as ‘trouble-makers’ or the complaint was laughed-off as trivial or a joke. In addition to normalising sexual harassment, some employers indulged in victim-blaming, claiming the complainants’ clothes or actions invited attention.

On occasion, individuals were ‘punished’ for complaining by being threatened, disciplined or transferred to another role whilst the perpetrator remained unaffected.

Revealingly, the most common response to the question whether the employer’s reaction to the complaint had been helpful or unhelpful was, ‘very unhelpful’.

Employers’ procedures provide a potential explanation for why complainants were dissatisfied – the EHRC found many to be ineffective. Harassment was often included within a wider diversity policy, some of which made only minimal references to sexual harassment. Around two-thirds of employers responding to the survey trained managers on harassment, but only half trained other staff – and fewer than one-third evaluated the effectiveness of their policies.

EHRC recommendations

In light of the information gleaned from their survey, the EHRC has made various recommendations for change. These fall under three headings, ‘changing culture’, ‘promoting transparency’ and ‘strengthening protection’, and include:

Changing culture

• Introduction of a mandatory statutory duty on employers, enforceable by the EHRC, to take reasonable steps to protect workers from harassment;
• Introduction of a statutory code of practice on sexual harassment, mirroring the ACAS code of practice on disciplinary and grievance procedures, which can be taken into account in tribunal proceedings.
• Giving employment tribunals the power to uplift compensation by up to twenty-five percent where the statutory code of practice is breached.
• The Government should develop an online tool to support victims reporting sexual harassment.

Promoting transparency

• The Government should collect data every three years to determine the nature and prevalence of sexual harassment at work. It should report the findings and publish an action plan following each report addressing ongoing areas of discrimination.
• Employers should publish their sexual harassment policy online, together with the steps taken to implement and evaluate it.
• The Government should pass legislation which provides that any contractual clause preventing disclosure of future acts of discrimination or harassment is void.
• The proposed statutory code of practice should set out the circumstances in which confidentiality clauses preventing disclosure of past acts of discrimination or harassment will be void. It should also set out best practice on the use of confidentiality clauses in settlement agreements.

Strengthening protection

• The limitation period for bringing a harassment claim should be extended to six months from the latest of: (i) the date of the act, (ii) the last in a series of acts, or (iii) the exhaustion of an internal complaints procedure.
• If claims are brought out of time, the burden of proof should be shifted onto the respondent to establish why time shouldn’t be extended.
• Restore various protections which were removed from the Equality Act 2010, such as the power of the tribunal to make recommendations, statutory questionnaires and employer’s liability for acts by third-party harassers.

Perhaps the most significant practical issue for employers is the suggestion that confidentiality clauses relating to discrimination and harassment should not be enforceable.  It is currently very common for settlement of such claims to include confidentiality obligations – indeed, often this is an essential part of the deal in order to minimise reputational damage.  Reviving liability for the acts of third parties and extending time for bringing claims would also strengthen significantly the ability of workers to bring legal challenges.

There is no obligation on the Government to implement any of these recommendations, although this is an issue of great public interest at the moment so some action may well be taken.  This also comes at the same time as the Women and Equalities Commission is conducting a full inquiry into workplace sexual harassment.

As noted in the report, often it is employer’s procedures which are at fault.  Specific policies which are monitored and enforced, backed up with thorough training, are essential in helping to ensure that both female and male workers feel able to report inappropriate behaviour whenever it occurs.