The House of Commons Women and Equalities Committee published a key report last week that calls for major reforms to be made to address evidence that sexual harassment is endemic in the workplace.
The six month inquiry concluded that sexual harassment was widespread and commonplace and highlighted that in one poll conducted for the BBC, it was found that two out of five women and nearly two in 10 men have been victim to unwanted sexual advances in the workplace.
In order to address what it considered to be a long-standing problem in relation to attitudes about sexual harassment, action points were suggested under five general headings.
Putting sexual harassment at the top of the agenda
This was to be achieved by having incentives in place to encourage employers to tackle sexual harassment in the workplace. It was highlighted that steps had been taken to encourage compliance with anti-money laundering and data protection duties, whilst no action had been taken in relation to problems with harassment. It agreed with the recommendation by the Equality and Human Rights Commission (EHRC) that employers should be placed under a “mandatory duty” to protect their workers from harassment and victimisation. This would be enforceable by the EHRC and supported by a statutory code of practice. Financial penalties for breaching the duty would be put in place that could be significant.
Steps should also be taken to protect employees from being sexually harassed by customers, clients or any other third party with who their work may require them to interact.
In order that employees are better informed about what is acceptable conduct, the Committee also called for the Government, Acas, the EHRC and employers to work together to provide consistent information about: what behaviour constitutes sexual harassment; employers’ responsibility to protect workers; what action workers can take if they suffer harassment; and how employers can help them.
Regulators should take a more active role
The Committee wants regulatory bodies to take greater responsibility and ensure that their members are taking action to prevent sexual harassment and protect their staff.
It was recommended 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 failure by a regulatory body to take action to address the issues of sexual harassment in their sector would be a breach of the Public Sector Equality Duty.
Enforcement processes should be better
Although most employers have policies and procedures in place in respect of discrimination and sexual harassment, there had been insufficient action to ensure they were effective and adequate. A statutory code of conduct to be published by the EHRC would set out steps that employers must implement, and it was suggested that this could be taken into account when considering whether an employer had complied with its duties.
The Employment Tribunal should be given the power to apply an uplift of 25% to compensate for failure to comply with the code in the same way as it can currently in respect of a failure to comply with the Acas code of practice on disciplinary and grievance procedure.
Other Employment Tribunal changes recommended were to extend the time limits for sexual harassment claims; reinstate the use of questionnaires; allow for recommendations to be given again; provide for witness anonymity and give powers to award punitive damages, with a presumption that the employer should pay the employee’s costs if the claimant won.
Control the use of non-disclosure agreements
It considered the use of non-disclosure agreements (“NDAs”) in sexual harassment cases to prevent a victim from talking about their experience and found it to be unacceptable. It called for the use of NDAs to be “better controlled and regulated” and legislation on the use of standard and approved confidentiality clauses to be introduced.
More data collection
There was a lack of data on the extent of sexual harassment in the workplace. To address this, the Government should collect data on the number of Employment Tribunal claims relating to sexual harassment allegations and commission surveys every three years to “determine the prevalence and nature of sexual harassment in the workplace”. Only in this way would it be possible to assess whether any new measures implemented were having a positive impact on reducing incidents of sexual harassment at work.
The report and practical ways in which employers can take steps to address sexual harassment in the workplace will be explored in Gateley’s HRXchange event in November “Preventing Sexual Harassment at Work”.
This blog post was written by Christopher Davies. For further information, please contact:
Christopher Davies, professional support lawyer, Employment
T: 0161 836 7936