Workplace sexual harassment – Women and Equalities Committee urges radical reform

1. Putting sexual harassment at the top of the agenda

The report makes clear that the WEC considers tackling sexual harassment in the workplace to be a business priority on par with 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 the employers should 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. Financial penalties for breaching the duty would be significant – the thinking being that the higher the potential sanctions, the higher priority employers would attach to preventing sexual harassment.

The WEC also emphasises the need to protect employees from being sexually harassed by third parties (e.g. customers, clients), following the repeal of specific measures formerly contained in the Equality Act 2010, and to protect interns and volunteers who are not currently covered by the Act.

The report does recognise that there are different views on what is acceptable or unacceptable behaviour within the workplace, but says 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, Acas, the EHRC and employers to provide consistent information about: what behaviour constitutes sexual harassment; employers’ responsibility to protect workers; what action can workers take if they suffer harassment; and how can employers help them.

2. Requiring regulators to take a more active role

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. It considers that regulatory bodies should take greater responsibility and ensure that their members are taking actions to prevent sexual harassment and protect their staff.

The report recommends that regulators should 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 a failure by regulatory bodies to take action to address the issues of sexual harassment in their sector would be a breach of the Public Sector Equality Duty.

3. Making enforcement processes work better for employees

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 these are effective and adequate. 

The purpose of a statutory code of conduct (referred to above) would be to set out steps that employers must implement, and it is suggested that this could be taken into account when considering whether an employer has complied with its duties. The WEC also contends that Employment Tribunals (“ETs”) should have discretion to apply an uplift of 25% to compensation for failure to comply with the code (as is the case for a 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 and high by recommending that ETs should be entitled to award punitive damages, with a presumption that the employer should pay the employee’s costs if she wins the case.

In addition, the WEC recommends that the Government should review time limits, currently three months in all discrimination cases including sexual harassment, with a view to allowing more time for alternative resolution mechanisms. The WEC also wants the use of questionnaires and the possibility for ETs to make recommendations (both repealed on 2013) to be reinstated.

Finally, the report suggests that similar systems should be introduced to protect victims of sexual harassments in ETs to those which are available in criminal matters (e.g. evidence on screen, lifelong anonymity).

4. Cleaning up the use of non-disclosure agreements

While recognising that non-disclosure agreements (“NDAs”) are a useful tool in the employment relationship and sometimes necessary to protect business interests, the WEC condemns their use in sexual harassment cases where the effect is to prevent a victim from even being able to talk about it.

In March, the Solicitors Regulation Authority (“SRA”) published a warning notice to solicitors which states 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, using plain English, explaining 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”. The report further contends that the definition of protected disclosure should include disclosure of sexual harassment incidents to the police, regulators and courts and tribunals.

5. Collecting robust data.

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 ET claims relating to sexual harassment allegations 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 we may be able to see whether any new measures implemented are having a positive impact on reducing incidents of sexual harassment at work.

Our response

The WEC’s call to put sexual harassment at the top of the agenda, for both government and employers, is timely, although it remains to be seen what will come out of the recommendations and whether specific legislative proposals will emerge in response.

Since we started our A Lasting Change campaign at the beginning of this year, our experience has been that most employers want to engage proactively with their employees about sexual harassment. Most have felt concerned that employees, both men and women, across all sectors and at all levels have experienced some sort of sexual harassment which they did not feel able to report. 

One of the challenges employers face is 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 changes to the law. There is a risk that increased formality will create an environment in which speaking up is actually made harder for the victim rather than easier. What will work in one organisation may not be effective in another. The most proactive employers have been engaging directly with their employees about the sorts of systems they think would help ensure that any future concerns are raised.

The Government will hopefully now give careful consideration to the WEC recommendations. In the meantime, we suggest that - as a minimum - employers: have a clear and well-publicised code of conduct; ensure that all employees know with whom they can raise a concern if they have one; and take appropriate and consistent action in relation to any concerns that are raised with them.