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Workplace sexual harassment

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Workplace sexual harassment prevention needs rise on Government’s agenda. In July 2018, the Women and Equalities Committee (WEC) published its report on sexual harassment in the workplace. This closely followed the Equality and Human Rights Commission (EHRC) report “Ending sexual harassment at work” which gathered evidence from over 1,000 individuals. Here are the facts.

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The WEC’s main recommendations are that the government focuses on five priorities:

  • Introduce a new mandatory duty on employers to prevent harassment, supported by a statutory code of practice outlining the steps they can take to do this; and ensuring that interns, volunteers and those harassed by third parties have access to the same legal protections and remedies as their workplace colleagues;
  • Require regulators to take a more active role, starting by setting out the actions the regulator will take to help tackle this problem, including the enforcement action they will take; and making it clear to those they regulate that sexual harassment is a breach of professional standards affecting fitness to practise and a reportable offence with sanctions;
  • Make enforcement processes work better for employees by setting out in the statutory code of practice what employers should do to tackle sexual harassment; and reducing barriers to taking forward tribunal cases, including by extending the time limit to six months for submitting a claim, introducing punitive damages for employers’ breaches and reducing cost risks for employees;
  • Clean up the use of non-disclosure agreements (NDAs), including by requiring the use of standard, plain English confidentiality clauses, which set out the meaning, limit and effect of the clause, and making it an offence to misuse such clauses; and extending whistleblowing protections so that disclosures to the police, courts and regulators such as the EHRC are protected;
  • Collect robust data on the extent of sexual harassment in the workplace and on the number of employment tribunal claims involving complaints of harassment of a sexual nature.

What is sexual harassment?

The legal definition of sexual harassment is unwanted conduct of a sexual nature which is intended to or has the effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.  Examples of sexual harassment include touching, groping, sexual comments or sending sexually explicit emails/images.

If an employee sexually harasses a person whilst carrying out duties closely connected to their employment, the employer can be held liable (known as vicarious liability).  Sexual harassment in the workplace can be committed by anyone your workforce come into contact with.  That could be colleagues, but it could also be third parties such as clients, customers and suppliers.  This is a particular issue in the hospitality industry – as evidenced by the FT’s recent exposé concerning hostesses who were allegedly groped at the Presidents Club’s men-only charity dinner.

How common is sexual harassment?

More common than most might think.  Two thirds of those who responded to the EHRC’s survey said they had experienced sexual harassment at work.  Most victims were women and the common perpetrators were senior colleagues.  However, just under a quarter reported being harassed by clients, customers and service users.  Some even reported suffering harassment during the recruitment process.

Who is protected?

Workers, agency workers and employees are protected from sexual harassment under the Equality Act 2010.  Self-employed consultants could be covered by the Equality Act 2010 but even if not they may still be able to bring a civil claim of sexual harassment as a service provider under the Equality Act 2010 or the Protection from Harassment Act 1997.  However, the statistics indicate that, whilst these legal protections exist, they are rarely used.

Fear of making complaints

Fear of being victimised for raising concerns, particularly if they relate to senior management, sadly results in most cases of harassment going unreported.  Many victims will not report sexual harassment for fear of being victimised or because they cannot trust their employer to take robust action. Helping victims to raise their concerns is therefore key.  Encouraging raising concerns anonymously via a whistleblowing procedure can address this issue.

Is there already an effective remedy for victims?

Workers can bring complaints of sexual harassment to an employment tribunal.  However, the claims statistics indicate that the number of such claims is low.  This could either be because they are settled early on through ACAS conciliation or because workers decide not to bring them.  Even if those cases are settled through conciliation though, that will not result in the issue being resolved if the perpetrator is not being properly tackled by the organisation.

Will the WECs recommendations bring about the change needed?

One of the criticisms of the current system is that tackling sexual harassment in the workplace is not a priority for employers because it isn’t governed by tougher sanctions such as those in place for data protection and money laundering prevention.  Whilst the law currently exists to protect most victims in the workplace, the burden is on them to do something about it, which requires the courage to hold the perpetrators and their employers to account.

The fact that most complaints go unreported indicates a change in approach is certainly needed to tackle the issue.  The recommendations made by the WEC, if implemented by government, should all make a difference and, at the very least, put harassment at the top of the agenda.

However, real change is only likely to come about if the issue is tackled head on by employers themselves creating a culture of trust where staff feel safe to talk, and instilling values which reflect respect and dignity throughout the organisation, from top to bottom.

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