In its new report, ‘Turning Tables: Ending Sexual Harassment at Work’ the Equality and Human Rights Commission (EHRC) uncovers what it describes as:
“the shocking and stark reality of individuals whose careers and mental and physical health have been damaged by corrosive cultures which silence individuals and normalise harassment. We also found a lack of consistent, effective action on the part of too many employers”.
EHRC gathered evidence from over 1,000 individuals and employers between December 2017 and February 2018. 75% of those individuals who participated said they had experienced sexual harassment at work and the remaining 25% recorded witnessing sexual harassment at work or supporting a colleague who had been sexually harassed. EHRC reported that nearly all of the people who had been sexually harassed were women and commented:
“Harassment in the workplace reflects power imbalances based on gender and is part of a spectrum of disrespect and inequality that women face in everyday life”.
EHRC is now urging the UK Government to implement the following recommendations:
- A change in workplace culture
The report records that circa 50% of those who had experienced sexual harassment had not reported it to their employer for fear of victimisation, or that it would not be taken seriously. Many also reported a belief that senior staff would be protected. In around 50% of reported cases, individuals said that their employer took no action at all.
EHRC recommends that the UK Government should introduce a ‘mandatory duty’ on employers to take steps to protect employees and make a breach of that duty an unlawful act under the Equality Act 2006; allowing EHRC to take enforcement action.
EHRC also recommends a ‘statutory code of practice’ to set out clear steps employers should take to prevent and respond to sexual harassment. Furthermore, EHRC calls upon the Advisory, Conciliation and Arbitration Service (ACAS) to develop targeted training for managers and staff.
The UK Government is also guided to develop an online tool to address reporting barriers and to facilitate the reporting of sexual harassment at work.
- Greater transparency
Data collection is recommended as a way of tracking the number of incidents reported and the number of cases taken to Tribunal. The UK Government is being advised to collect data every three years and to report the findings and publish an ‘action plan’ of how it intends to address ongoing issues.
Employers are being asked to publish, on their website, a sexual harassment policy and the steps being taken to implement and evaluate it, not just in relation to their own employees, but also in respect of workers supplied to them by third parties.
EHRC goes on to advocate a ban on improper non-disclosure agreements and confidentiality clauses, and asks the UK Government to introduce laws which make such clauses automatically void and unenforceable.
NB: The Solicitors Regulation Authority has recently warned solicitors that non-disclosure agreements will be improperly used if they seek to prevent any person from reporting wrongdoing, co-operating with a criminal investigation or prosecution or making a protected disclosure under the Public Interest Disclosure Act 1998. Solicitors who seek to use inappropriate non-disclosure agreements may breach their professional principles and face disciplinary action as a result.
- Strengthened legal protection
EHRC recommends an increase in the limitation period for harassment claims in an Employment Tribunal from three months to six months on the basis that:
“For many people, three months will not give them sufficient time to recover, consider what has happened to them, make a decision to pursue the claim, seek legal advice and start the legal process. Employees are also often faced with a choice of allowing the limitation period to expire while they pursue an internal grievance, or issuing a claim before they have exhausted internal procedures.”
EHRC has suggested a form of interim relief for employees who have been dismissed, to allow the victim to make an application to have their employment reinstated pending the outcome of any claim. The aim of this recommendation is to reduce the economic hardship imposed on such employees, which makes bringing a claim even harder.
EHRC also wants to give power back to the Tribunal to make recommendations aimed at reducing the adverse effects of discrimination on the wider workforce, rather than just the individual concerned.
Impact on employers
If the UK Government extends the limitation period for harassment claims, then employers can expect to see a rise in the number of claims brought in the Tribunal. Furthermore, any claimants whose harassment claims are settled outside of a public Tribunal will not be silenced by inappropriate non-disclosure agreements.
In an attempt to eliminate sexual harassment in the workplace, employers should take steps now to ensure that they have an anti-harassment policy in place and that their employees know where to find it. Employers should also ensure that managers and senior staff receive improved training on how to prevent harassment in the workplace, ensure that employees feel able to report harassment, and correctly handle reports of harassment in order to ensure employees are not victimised as a result of making a complaint. Many employers are also starting to include anti-harassment training in their inductions programmes for employees of all levels.
A full copy of the EHRC report can be found here: https://equalityhumanrights.com/en/publication-download/turning-tables-ending-sexual-harassment-work
This blog post was written by Gillian Hanson. For further information, please contact:
Gillian Hanson, solicitor, Employment
T: 0161 836 7887