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 of them. Examples include unwelcome physical contact, sexual comments, promises in return for sexual favours and displaying sexually graphic pictures.
Employers still have a long way to go to eliminate sexual harassment from the workplace. A solution lies with the UK Government.
In March 2018, the Equality and Human Rights Commission published ‘Turning the tables: ending sexual harassment at work’, which shares evidence about sexual harassment in the workplace gathered from around 1,000 individuals and employers, and makes a series of recommendations about how to end sexual harassment at work.
The evidence gathered by the EHRC is described as “shocking”, with employers normalising harassment. The EHRC reported that employers do not protect their employees from sexual harassment at work. Too many people were being silenced by toxic workplace cultures and very real fears of victimisation, with employers’ responses inconsistent.
Existing legal obligations and guidance for employers are not enough to protect workers from sexual harassment or to protect victims. The EHRC made recommendations to bring about:
- A change in workplace culture, with employers taking more responsibility for preventing harassment;
- Greater transparency about incidents of harassment and the policies in place to prevent them; and
- New laws to strengthen protection for harassment victims.
The EHRC reported that a solution starts with the UK Government, to show clear leadership and implement the EHRC’s recommendations to eliminate sexual harassment.
So what are the EHRC’s recommendations?
I. Changing culture – a mandatory duty and statutory code of practice
Presently there is no statutory duty on employers to take steps to prevent harassment or victimisation in the workplace. The EHRC recommend introducing a mandatory duty on employers to take reasonable steps to protect workers. Breach of the mandatory duty should constitute an ‘unlawful act’ for the purposes of the Equality Act 2006 (EA 2006), which would be enforceable by the EHRC.
The UK Government should introduce a statutory code of practice on sexual harassment and harassment at work, specifying the steps that employers must take to prevent and respond to sexual harassment and harassment, and which can be considered in evidence when determining whether the mandatory duty has been breached.
We know from the TUC’s survey ‘Still just a bit of banter’ that reporting rates for sexual harassment are low. Due to the lack of a positive duty to prevent harassment:
- employers don’t put in place adequate systems for dealing with complaints; and
- employees in turn fear that their complaints won’t be dealt with properly or that they will be victimised, and therefore don’t raise complaints.
A mandatory duty would break that cycle. The EHRC would have the power to, for example, commence an investigation into an alleged breach of the mandatory duty, without the need for an individual to bring an Employment Tribunal claim.
An evaluation of the impact of the ACAS code of practice on disciplinary and grievance procedures found that the code made a significant impact on the way employers handled disciplinary and grievance procedures. A code of practice on sexual harassment and harassment could, likewise, change the way employers handle complaints of harassment, which we hope would in turn lead to increased reporting of such incidents.
The EHRC recommend that ACAS should develop targeted sexual harassment training for managers, staff workplace sexual harassment ‘champions’.
The code of practice will need to include guidance on training. ACAS should therefore develop targeted sexual harassment training to support employers in achieving the requirements of the code and promote this to employers.
III. Reporting mechanisms
The EHRC recommend that the UK Government should develop an online tool to facilitate the reporting of sexual harassment at work. Culture change will not happen overnight and, even in those workplaces with the most effective approaches to preventing and responding to sexual harassment, there will remain circumstances in which employees feel unable to raise a complaint of sexual harassment. To encourage people to report, individuals need mechanisms that address significant barriers to raising issues. In other areas, technology is being used effectively to support people to report in a way that feels safe to them. The UK Government should look to these examples and develop a tool which allows individuals to report confidentiality and help employers improve their practice by identifying issues.
IV. Data collection
To achieve the necessary change in culture, greater transparency is required so that it is clear what the exact scale and nature of workplace sexual harassment is across the UK, and whether attempts to prevent and respond to it are succeeding. The EHRC recommend collecting data from individuals every three years to determine the prevalence and nature of sexual harassment at work. Secondly, report the findings from its data collection, broken down by protected characteristics, including an evaluation of measures taken to tackle the problem since previous reports. Thirdly, publish an action plan following each report, stating how it will address enduring areas of discrimination and disadvantage.
The EHRC need to be able to tackle progress in areas such as the number of incidents that take place, that are reported to employers and that are taken to Tribunal. The EHRC also needs to be able to track trends such as where sexual harassment takes place (for example, in the workplace, at social events or online). To do this, the EHRC need large-scale reliable data which is collected at regular intervals. With the assistance of such data, the EHRC will be able to assess the success of measures taken and make improvements to policy and practice where necessary.
V. Publication of policy
The EHRC recommend that employers should publish their sexual harassment policy and the steps being taken to implement and evaluate it in an easily accessible part of their external website.
Employers can play an important role in ensuring that all current and potential employees are aware of their commitment to preventing sexual harassment at work. They can raise awareness of the steps they are taking to ensure their workplaces are free from sexual harassment and how everyone can report any incidents that do occur. Making this information public will facilitate sharing of best practice and encourage employers who are falling behind to improve their practices.
VI. Non-disclosure agreements and confidentiality clauses
The EHRC recommend the introduction of legislation making any contractual clause that prevents disclosure of future acts of discrimination, harassment or victimisation void.
NDAs and confidentiality clauses in settlement agreements are often used to deter people from speaking out.
We also recommend that the statutory code of practice on sexual harassment and harassment at work should, subject to consultation on the code, set out the circumstances in which confidentiality clauses preventing disclosure of past acts of harassment will be void and best practice in relation to the use of confidentiality clauses in settlement agreements. Confidentiality clauses should not be used to prevent employees from discussing harassment.
VII. Limitation periods
To strengthen protection for harassment victims the EHRC recommend extending the limitation period for harassment claims in an Employment Tribunal from three to six months. So six months from the latest date of the act of harassment, the last in a series of incidents of harassment or the exhaustion of any internal complaint’s procedure.
The present limit of three months is a significant barrier to people bringing harassment claims. For many, three months will not give them enough time to recover, consider what has happened to them, decide 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.
VIII. Restoring lost protections
The EHRC recommend restoring and so widening an Employment Tribunals powers at reducing the adverse effects of discrimination on the wider workforce. Tribunals frequently hear evidence about poor employment practice, but they are currently able to make recommendations only about the employer’s treatment of the individual claimant. In order to achieve systemic change, it is critical that Tribunals can make recommendations to improve employers’ practices towards the workforce more broadly.
In ‘Turning the tables: ending sexual harassment at work’, the UK Government does need to show clear leadership and implement the EHRC recommendations to eliminate sexual harassment in every British workplace, through transforming workplace cultures, promoting transparency and strengthening legal protections.
A mandatory duty, code of practice and action on NDAs are central to this; to shifting from the current situation where individuals risk their jobs and health to report harassment, to putting the onus on employers to effectively prevent and resolve harassment.