Proposals for ending sexual harassment at work

A change in workplace culture, greater transparency about incidents of harassment and new laws to strengthen protection for victims are recommendations recently announced by the Equality and Human Rights Commission (EHRC) to tackle the problem of sexual harassment at work.

The EHRC found that the most common complaint was harassment by a senior colleague and that many individuals had not reported the harassment, which is of concern. The barriers for reporting were concerns that the employer did not take the issue seriously, a belief that alleged perpetrators (particularly senior staff) would be protected, a fear of victimisation and a lack of appropriate reporting procedures. According to the EHRC, “Corrosive working cultures have silenced the voices of victims and normalised sexual harassment”. In its report, ‘Turning the tables - Ending sexual harassment at work’ (published on 27 March) the EHRC made a number of recommendations to better protect people at work:

A change in workplace culture

• A new mandatory duty for employers to take reasonable steps to protect workers from harassment and victimisation in the workplace (as opposed to the current duty of care).
• A statutory Code of Practice requiring all employers to take effective steps to prevent and respond to sexual harassment with an uplift of up to 25% in Employment Tribunal awards for breach of the Code.
• Targeted sexual harassment training for managers and staff and workplace sexual harassment champions developed by ACAS to help employers comply with the Code.
• A confidential online tool for employees to report instances of sexual harassment.

Greater transparency

• Data should be collected by the Government every three years to determine the prevalence and nature of sexual harassment with the data broken down by protected characteristic and the measures taken to tackle the problem since previous reports.
• Employers should publish their sexual harassment policies and steps taken to implement and evaluate them in an easily accessible part of their external website.
• The Government should introduce legislation to make any contractual clauses which prevent disclosure of future acts of discrimination, harassment and victimisation void.
• The Code should set out the circumstances in which confidentiality clauses preventing disclosure of past acts of harassment will be void.
• Confidentiality clauses in settlement agreements should only be used at the employee’s request, save in exceptional circumstances.

Strengthening protection

• Increasing the time limit for harassment claims from three to six months from the latest date of the act of harassment, or the last in a series of incidents or the end of any internal grievance procedure.
• Introducing ‘interim relief’ provisions for harassment and victimisation claims for those dismissed following a sexual harassment allegation (which protect the position of the claimant whilst the main claim is decided).
• Reintroducing an amended version of the statutory questionnaire procedure for sexual harassment cases and of Employment Tribunal’s power to make wider recommendations in sexual harassment cases.
• Restoring the repealed ‘third party harassment provisions’ in section 40 of the Equality Act 2010 but amended to remove the requirement for there to have been two or more instances of harassment.

Employers are vicariously liable for their employees’ acts of harassment which take place during the course of employment (including conduct at work social events) whether or not the actions were done with the employer’s approval or knowledge. A harassment claim can be defended however if the employer can show that it took all reasonable steps to prevent the employee from carrying out the acts. This includes, for instance, taking a zero-tolerance approach to sexual harassment, having effective policies and procedures in place, providing training where required and responding appropriately to complaints. The good news for employers is that extensive guidance published over the past few months by ACAS, the EHRC and the TUC will help employers understand their obligations in regard to sexual harassment and what to do if a complaint is made.

Author: Matthew Smith, Partner at Blake Morgan LLP. Blake Morgan LLP are a framework supplier on all lots for the Legal Services framework with the exception of Lot 4 (Northern Ireland), Lot 7 (Scotland), Lot 13 (Channel Islands) and Lot 14 (National One-Stop-Shop).

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.