Sexual Harassment in the workplace

Strengthening legal rights and employer obligations in the UK?

The Women & Equalities Committee of the UK Parliament has today published its report on sexual harassment in the workplace. If the recommendations are taken forward by the Government, it could lead to greater protection for those subjected to harassment at work, an extension of rights and greater responsibility and liability for employers and their advisers. Regulators are also called upon in the report to take more stringent action when it comes to preventing and addressing harassment in the workplaces of those they regulate, as are professional bodies.

Background

In the wake of the #MeToo campaign and the Zelda Perkins’ case, the Committee heard evidence from Ms Perkins as well as lawyers, trade union representatives, the FCA, Public Concern at Work, and the Health & Safety Executive. The issues considered were wide ranging including the extent to which harassment issues fell within the existing whistleblowing regime to protect individuals, who was protected in employment terms and the use of non-disclosure agreements.

Their recommendations call on the Government to make changes to both the level and scope of legal protection and enforcement regime but also place greater and clearer responsibilities on employers, underpinned through financial penalties and oversight on sexual harassment issues by regulators.

At 60 pages long, the development of harassment protection and challenges faced by individuals are explored at length, what follows are the main headlines only and the report itself can be accessed here.

Key Recommendations

A statutory code on sexual harassment

This follows a recommendation by the Equality & Human Rights Commission, in March this year, in its report “Turning the Tables: ending sexual harassment at work”:

  • The legal regime, through the Equality Act 2010, makes it unlawful for an employer (and related third parties including employees and agents) to subject an individual to sexual harassment. An employer can defend itself if it can show that the organisation took all reasonably practical steps to prevent such harassment. The new code which is being suggested would strengthen the employer’s obligation - requiring specific preventative steps - and a mandatory duty to prevent harassment and victimisation: “greater and clearer responsibilities for protecting workers from sexual harassment” will be the aim.
  • The law should also be changed, according to the Committee to explicitly protect volunteers and interns who may not be employees.
  • A new code would address anonymous reporting, procedural requirements of employers and allow for Employment Tribunals to increase compensation in claims for failure to implement mandatory elements of the statutory Code by up to 25%.
The legal regime

Here the recommendations include extending the time limit in which complaints of this nature can be brought in an Employment Tribunal to six months (a few years ago the Committee sought a similar extension for individuals brining pregnancy related claims), with a presumption that costs will be ordered for a complainant who succeeds as well as the ability to award punitive damages.

Their view also is that Employment Tribunals should be given more extensive powers where the sexual harassment is most serious and akin to a sexual offence, including lifelong anonymity and specialist procedures to protect the complainant at any hearing. Finally, previous legal powers such as statutory questionnaires and wider Tribunal recommendations should be reintroduced for sexual harassment claims.

Non-Disclosure Agreements (NDAs) in plain language and making it an “offence” to misuse both for employers and those advising

In the US measures are already being taken to regulate the use of NDAs in some states and their use has come in for significant criticism, although there is a balance with protecting the organisation as well as the individual using confidential provisions. Concern has been expressed about the “chilling” effect which agreements can have by “silencing victims” and sometimes allowing unacceptable behaviours to continue. For solicitors the SRA has already issued guidance setting out the need to act ethically when advising clients/employers and uphold professional conduct rules. The Committee wants to Government to legislate so that the scope of confidentiality clauses is limited and to ensure clear language with clear explanations to individuals being asked to sign such agreements is required. In New York state the requirements include for example, a cooling off period.

“Requiring Regulators to take a more active role, starting by .... making it clear to those they regulate that sexual harassment is a breach of professional standards and a reportable offence with sanctions”

Here the Health & Safety Executive and Solicitors’ Regulatory Authority (the latter in the context of NDAs in particular) have been called upon to act, investigate and address poor practice.

The Committee expressed the view that authorities who do not take an active role, could be regarded as failing in their public-sector equality duty. The Committee has called on regulators to make clear that sexual harassment by regulated persons is reportable and must be considered when considering fitness & propriety.

It will be interesting to see whether the Government takes all or any of these recommendations forward and how regulators and other bodies respond.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.