Sexual harassment in the workplace | Will government recommendations become law?

Last week, an alliance of unions, charities and women’s rights groups initiated a campaign calling for employers to be held legally liable if they fail to protect their staff from sexual harassment at work.

As it stands, responsibility for reporting sexual harassment at work lies with the victim, and employers are currently under no legal obligation to prevent this from happening through any proactive means.

The alliance, which goes by the name This Is Not Working, has launched a petition that seeks to shift the burden onto employers, calling for clearer policies and mandatory training for staff and managers.

It has pointed to research carried out by the Trades Union Congress (TUC), which found that:

  • More than half of women have been sexually harassed at work but 79% don’t feel able to report these incidents to their employer.
  • Seven out of 10 LGBT workers have experienced sexual harassment but felt unable to come forward due to fears of being “outed” at work.
  • One in eight women have experienced unwanted sexual touching or attempts to kiss them at work, and 28% have received comments of a sexual nature about their body or clothes.
  • A quarter of victims felt that their disclosures would not be taken seriously, and 15% thought that reporting sexual misconduct would have a negative impact on their career prospects.

The Fawcett Society chief executive, Sam Smethers, said: “We need to strengthen the law to better protect women from harassment from co-workers, clients or customers and we need a new duty on employers to prevent sexual harassment. They have to take responsibility for their own workplace culture.”

0 %
of women don't feel able to report workplace sexual harassment to their employer

So why is this happening now?

It’s now near enough impossible to scour the news without coming across an article related to sexual harassment. In the last couple of weeks alone, headlines have included a 16th woman coming forward to accuse Donald Trump of sexual misconduct, Google rejecting pleas to reform its sexual harassment policy, and a report which revealed that one in 12 NHS staff are sexually harassed at work.

As a society, we’re becoming increasingly vocal about instances of sexual harassment in all areas of life – whether it be unwelcome touching at a social event or sexual remarks made by a colleague – and progressively frustrated about the ineffectiveness of current protections.

While the government has claimed that it “strongly condemns sexual harassment” in all forms, it is now almost a year since the government responded to recommendations made by the Women and Equalities Committee, and although it appeared to be receptive to the majority of proposals made, campaigners have become inpatient waiting for the wheels to be set in motion.

In practical terms, the report sets out a number of recommendations, including the following.

Committee recommendations and government response

Following the recommendation of the Equality and Human Rights Commission, the Women and Equalities Committee has suggested making it a legal requirement for employers to protect their employees from sexual harassment in the workplace, with substantial financial penalties for those who breach this duty. This would be underpinned by a statutory code of practice on sexual harassment and harassment at work which outlines what employers are required to do in order to fulfil this obligation.

The government’s response:

In reply, the government reiterated the fact that employers already have a responsibility to protect employees from harassment and victimisation in the workplace under the Equality Act 2010. The Act outlaws:

  • Workplace harassment that relates to a protected characteristic;
  • Sexual harassment;
  • Victimisation that arises out of a person rejecting or submitting to harassment.

What’s more, employers are also liable for acts of harassment carried out by their employees in the course of their employment, unless they can demonstrate that they have taken ‘all reasonable steps’ to prevent the misconduct. Here, the government did acknowledge that it’s often not clear to employers what constitutes ‘all reasonable steps’.

Accordingly, the government stated that it agrees with the Committee that a statutory code of practice should be introduced to help employers understand and fulfil the duties placed upon them. However, before introducing such legislation, it proposed to first gather evidence to determine how effective a solution this would be, as well as evaluate the potential impact that this is likely to have on businesses.

Up until October 2013, the Equality Act established the ‘three strikes rule’. This meant that in cases where an employer was aware that two instances of harassment had been committed by a third party but neglected to take reasonable steps to prevent a third incident, they could be held liable. However, following a government consultation, this rule was scrapped.

In the Court of Appeal case of Unite the Union v Nailard, Lord Justice Underhill stated that, because of this redaction, the Equality Act ‘no longer contains any provision making employers liable for failing to protect employees against third-party harassment as such’. The Committee therefore proposed that the removed sections should be reintroduced in order to hold employers responsible and prevent third-party harassment from being overlooked.

The government’s response:

The government seconded this notion, agreeing that employers should have a responsibility to protect staff from third-party harassment in cases where they know employees to be at risk. However, it claimed that recent case law has muddied the waters when it comes to the legal ramifications of third-party harassment, so relevant laws will need to be strengthened and clarified in order to be effective.

A worker’s rights depend on their employment status. However, the Women and Equalities Committee stressed that all workers should feel safe while at work, which includes being protected from sexual harassment. They therefore recommended extending the range of individuals covered by the provisions of the Equality Act to include interns and volunteers, affording them the same protections as employees.

The government’s response:

Again, the government agreed with the principle behind this suggestion. However, it pointed out that while employment status does often complicate matters, there are already certain legal avenues that volunteers and interns can pursue should they experience sexual harassment in the course of their engagement with an organisation. For example, volunteers and interns may be able to take legal action against an organisation under common law relating to duty of care or personal injury, or under the Health and Safety at Work etc Act 1974.

That said, it acknowledged that workers are often unaware of these rights, which makes such avenues not fully accessible. It therefore pledged to take steps to ensure relevant laws are better understood.

The Committee also raised concerns about the three-month time limit employees have to submit a harassment claim to an Employment Tribunal. It maintained that this does now allow enough time for the parties to find alternative ways of resolving matters, so proposed extending the period to six months. It also suggested that the clock should be stopped while internal grievance procedures are undertaken.

The government’s response:

The government responded by reiterating the rules surrounding lodging Employment Tribunal claims.  As is it stands, this three-month window begins from the date on which the event in question took place (or the date of the final act of alleged misconduct). Despite these rules, the government emphasised that the Employment Tribunal can (and does) grant extensions if it believes it is “just and equitable” to do so. It therefore proposed to ensure that this power is more widely known, and the process better understood.

On a separate note, the government rejected the Committee’s suggestion to ‘pause the countdown’ on tribunal time limits. It cited a number of difficulties with this proposal, including the problem of defining when an internal grievance process starts and ends (as there is no consistent process that all employers must follow), as well as the risk of dragging out proceedings that rely on fresh recollection of events.

The Committee expressed extreme concern that Non-Disclosure Agreements (NDAs) – so-called “gagging orders” – may be used to silence victims of sexual harassment. It therefore urged the government to introduce legislation that permits only the use of standardised, government-approved confidentiality clauses, and sets out what disclosures are protected under whistleblowing laws (and therefore cannot be limited or restricted).

The government’s response:

While sharing the Committee’s concern, the government pointed out that workers do retain their existing statutory rights even if they have signed an NDA. Yet again, they expressed that the problem here is that workers are often unaware of these rights. They may therefore not know that the NDA they have signed is unenforceable, which leaves them at risk of intimidation and leads them to wrongly assume that they are legally unable to speak out.

To combat this, the government agreed that NDAs require better regulation, as well as a clearer explanation of the rights that workers cannot sign away (such as their right to report criminal wrongdoing). In this regard, it said it will look into the Committee’s proposal of a standard approved confidentiality clause.

"We need to strengthen the law to better protect women from harassment from co-workers, clients or customers and we need a new duty on employers to prevent sexual harassment. They have to take responsibility for their own workplace culture."

HR Manager, Empire Cinema

Shifting the burden of proof

Placing a mandatory duty on employers to prevent sexual harassment is just one of the ways the Women and Equalities Committee is attempting to put the responsibility for protecting women in the workplace firmly in employers’ hands.

In a similar fashion, the Committee is also proposing to shift the burden of proof in discrimination cases from alleged victims to employers. In a recent report, it suggested that employers are “not afraid to discriminate” against staff because they are “unlikely to be held to account”. The problem here, it suggests, is enforcement, not only in sexual harassment cases but also cases of potential maternity discrimination, for example.

Chair of the Committee Maria Miller said: “One thing is absolutely clear, the burden of enforcement must shift away from the individual.”

She added: We need a critical mass of cases to build a culture where compliance with the Equality Act is the norm.”

James Tamm

Director of Legal Services

Expert Comment

Several recent reports indicate that employees are not willing to report harassment. This is supported by the latest set of Employment Tribunal statistics which were published in June. If you ignore the anomaly of 2,785 sex discrimination claims being lodged in Scotland during August 2018 (compared to just 18 in July), then the number of these cases increased by 18.6% in FY19. Significantly, that is below the national average, which saw the total number of claims climb 26% year on year. Given the publicity around the issue, that dichotomy is hard to explain.

Clearly only a tiny percentage of employees subjected to harassment feel able to bring legal action and no doubt the current rules are part of the reason for that. It is clear something needs to change as the status quo is not working. However, any changes need to be carefully considered and well-reasoned. In that sense, the latest government consultation is welcomed and no doubt some of the recommendations from the Women and Equalities Committee will be adopted. However, only time will tell exactly what they will be.

What happens now?

The government is set to consult on workplace sexual harassment soon. In the meantime, the International Labour Organisation (ILO) has recently adopted a treaty that will see the UK take on a global set of standards in relation to preventing gender-based violence and harassment at work. This will involve developing national laws to prohibit workplace violence and provide worker protection and victim services.

Need support?

If you require professional assistance with handling claims of sexual harassment in your workplace, Ellis Whittam’s team of qualified Employment Law specialists can provide pragmatic support. We can also create a bespoke Employee Handbook that sets out your stance on harassment, outlines what is expected of employees, and explains how misconduct will be dealt with. For more information, call 0345 226 8393.