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Global HR Lawyers

Calling time on workplace sexual harassment?

23 February 2018

A full inquiry into workplace sexual harassment has been announced by the Women and Equalities Committee. The aim of this Government inquiry is to uncover the true scale of the problem and consider what action employers and the Government can take to address it.

The announcement comes at a time of significant media attention on sexual harassment, garnered by the #metoo and #timesup campaigns and the outrage over the Presidents Club charity dinner last month.

In January, the Committee heard oral evidence from a selection of employment law and business experts which considered a diverse range of questions, such as how to prioritise dealing with sexual harassment in the workplace, the effectiveness of the protection offered by the legal system and the much debated issue of third party harassment.

Is dealing with sexual harassment a priority for business?

In 2016, the TUC published a report on sexual harassment in the workplace which found that four out of five women did not report sexual harassment to their employer. Of those who did report it, 75% felt that this did not result in any change and 16% said that they were treated worse as a result.

The expert evidence to the Committee considered whether or not there should be a stronger legal framework which places the onus on employers to demonstrate that they have taken reasonable steps to stamp out sexual harassment in the workplace (for example, by conducting sexual harassment risk assessments) with strong sanctions for non-compliance.  For example, the current regulatory burden on businesses preparing for the new General Data Protection Regulation has forced the issue high up on the corporate agenda.

Is the Tribunal system fit for purpose?

In the US, punitive damages can be awarded of up to $300,000 at federal level and uncapped at state level. This is in contrast to the remedies available in the UK, where only relatively modest awards available where no job or earnings have been lost.  Again, the implication is that if awards are potentially significant, the issue of sexual harassment and how to prevent it will be prioritised by businesses. 

A number of suggestions were made as to how the tribunal system might be improved.  These included extending the three month time limit in which to bring a claim in the tribunal for sexual harassment to allow time for reflection and internal procedures to be exhausted. Unsurprisingly, there was some disagreement between the experts as to whether or not the statutory discrimination questionnaire procedure should be reintroduced.  The current lack of a formal process through which an individual who is considering bringing a discrimination claim can ask relevant questions of his or her employer, has given rise to a tendency for individuals to ask lengthy and often irrelevant questions which can be time-consuming and difficult to respond to for employers.

Third party harassment

An issue of particular focus in the expert evidence session was the inadequate legal protection from third party harassment.  Following on from the FT’s uncovering of events at the Presidents Club dinner, more than 100,000 people signed an online petition calling for the reinstatement of section 40 of the Equality Act 2010.

Under section 40 employers were liable for third party harassment if there had been two previous incidents of harassment by a third party which the employer was aware of but had failed to take reasonable steps to prevent it from happening again. This section was repealed in 2013 after the Government decided that it placed an unnecessary burden on employers.

What should employers be doing?

Irrespective of whether further regulation is introduced, there is a significant amount that all employers can do to build a culture that supports employees in feeling able to come forward if they have been sexually harassed. It is not enough just to have a harassment policy.  The policy needs to be publicised and applied where necessary.  Employees need to feel confident that when an incident is reported, it will be taken seriously and properly investigated. Training should be given on what is and isn’t acceptable conduct in the workplace and employers should not be afraid to take disciplinary action where appropriate.

The Women and Equalities Committee is currently accepting written submissions of evidence. Lewis Silkin will be submitting a response, including on the use of non-disclosure agreements and confidentiality clauses in settlement agreements, which we will share with you shortly.

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