Parliamentary report on sexual harassment in the workplace- considering its recommendations and comments

The topic of sexual harassment in general, and in the workplace in particular, has received significant press and media attention recently. The #MeToo movement has received significant support from high-profile characters from a broad range of backgrounds and industries. The topic has resulted in specific attention from UK law makers and official bodies. Back in March 2018 we wrote about the concerns raised in the report on sexual harassment produced by the Equalities and Human Rights Commission. The UK Parliament has now given further consideration of this topic, within the report on “Sexual Harassment in the Workplace” produced by the Women and Equalities Commission- which is a parliamentary committee.

The report runs to just under 60 pages of text, covering a range of aspects of the topic of sexual harassment.  A useful, two- page, summary is provided, outlining the main areas covered and the action that the committee is calling on the Government to take. In the summary it is noted that sexual harassment “is widespread and commonplace,” and it states that “It is shameful that unwanted sexual behaviours such as sexual comments, touching, groping and assault are seen as an everyday occurrence and part of the culture in workplaces.” Worryingly from the view of any employer the summary states that “Government, regulators and employers have failed to tackle them, despite their responsibilities to do so under UK and international law.

In the summary it is noted that the law provides incentives to deal with the security of personal data and to prevent money laundering “with stringent requirements on employers and businesses to meet their responsibilities in these areas.” But, the lack of effective prevention and controls to deal with sexual harassment is noted, further observing that in reality “the burden of holding harassers and employers to account rests heavily on the individual.” The report notes that the employment tribunal system does not work well enough. The report accepts that enforcement provisions need to be effective.

A number of recommendations are made in the parliamentary report, including the following:-

- A mandatory duty on employers to protect employees from sexual harassment in the workplace, enforceable by the Equalities & Human Rights Commission, with appropriate fines attached.

- The creation of a statutory Code of Practice is recommended outlining the steps that employers should take to prevent sexual harassment in the workplace,

- A duty on the public sector employers to conduct risk assessments and mitigate risks of sexual harassment,

- The clear extension of legal protection from sexual harassment to volunteers,

- Increasing the time limit in which claims of sexual harassment can be brought in an Employment Tribunal (currently usually 3 months) to 6 months, with the time stopped while any internal grievance process is being used,

- Giving the Employment Tribunal the power to award punitive damages in cases of sexual harassment, and introducing the presumption that employers will have to pay the legal costs incurred by the person bringing the claim in the event of the employer losing a case concerning sexual harassment.

A significant section of the report addresses concerns about the use of non-disclosure clauses within the settlement of sexual harassment claims. The report recommends that a set standard government approved clauses should be required in order to have a legitimate non-disclosure requirement within any settlement arrangements.

Of particular note, the report recommends the extension of protection from sexual harassment from third parties (such as a customer of the employer) in the event that the employer has failed to take reasonable steps to prevent harassment by third parties.    

As the report concludes that sexual harassment is a health and safety issue, as well as an employment relations issues, the report states that the Health and Safety Executive should “take up its share of holding employers to account if they fail to take reasonable steps to protect workers from sexual harassment.”

It is obvious that the occurrence of sexual harassment in the workplace is bad for individuals that are the victim of such behaviour. It is probably the case that the recent attention to this topic has made this point clearer to employers too, and we hope that the attention has highlighted the fact that it is “bad for business”, not just because of the harm to the victims, but the harm to the reputation of the business as an employer, and the detriment to productivity and effectiveness of any member of staff that has become a victim of sexual harassment, and the detrimental effect to the morale of their colleagues.

Clearly employers should treat allegations of sexual harassment seriously and promptly. All too often the person that believes they are the victim of such behaviour can end up feeling that they are the one being assessed and judged when they raise an allegation of sexual harassment. Many good and promising employees can be lost to a business that appears to under-value them or to penalise them for making an allegation of sexual harassment.

For many businesses the best way forward is to have and use clear policies to deal with such allegations in such a way that does not leave the accuser feeling that they are in fact the accused or are at financial or profession, or reputational risk in making a genuine allegation of sexual harassment.

For those of us dealing with Tribunal litigation, the very short time limit (of three months) has often felt very restrictive and a deterrent in itself for those individuals that have a genuine claim of sexual harassment. This short time limit is, in our view, also unhelpful to employers in many cases, as it can force the individual to commences a claim in the Tribunal before internal procedures have been concluded. In turn that can force a situation where the employer can feel forced into a corner by the litigation before the issues can be sorted internally and sufficient time given to both sides for any remedial measures to take effect.

We have some concerns that the full range of recommendations could lead to some instances of friction in the workplace where, for example, a victim of racial harassment may feel that their complaint is less valuable or less important than that of someone that has complained of sexual harassment, or at least there is a possibility that they may feel that their claim of racial harassment may be treated less seriously. It is important for employers to note that all forms of unlawful harassment are harmful, and are bad for business too. However, this concern and potential problem is the consequence of the way in which certain issues attract the attention of the media and politicians, and only appear on the political radar when they become a “hot-topic” and focus of attention for some reason. Any change in the law and or in Tribunal procedures should receive proper scrutiny and careful consideration in any event, but certainly where they impact on the lives of many working people.

We can give you advice and help in introducing, implementing and using appropriate procedures to deal with the topic of sexual harassment in the workplace.  

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.