HR NEWS | Strengthening protection against sexual harassment

The #Metoo Movement has shown that incidences of sexual harassment do not just occur in the entertainment industry but in all types of workplaces. 

Sexual harassment can take place in the workplace, at a work social event, on a work trip or at a client’s workplace and by different people such as a manager, colleague or customer. It can involve jokes about a colleague’s sex life, unwelcome touching, demands for sexual favours or sending offensive emails.

With the spotlight on the magnitude and scale of sexual harassment at work, the Women & Equalities Committee, a select committee of the House of Commons, launched an inquiry and has now published its report on sexual harassment in the workplace.

In the report, it sets out a number of recommendations including the following:

  1. Establish a mandatory duty on employers to protect employees from sexual harassment in the workplace 

 A breach of this duty would be enforceable by the Equality and Human Rights Commission (EHRC) with substantial financial penalties. 

They also suggest that there should be a statutory code of practice on sexual harassment which would lay down what employers are required to do in order to fulfil this duty. 

  1. Reintroduce third party harassment 

Up until October 2013, section 40 of the Equality Act established the ‘three strikes rule’. So if there had been two instances of harassment and the employer knew about them but had not taken reasonable steps to avoid them occurring again, the employer could be held liable for harassment. 

In May 2018,  Lord Justice Underhill stated in the Court of Appeal case of Unite the Union v Nailard that the Equality Act ‘no longer contains any provision making employers liable for failing to protect employees against third party harassment as such’.  If the judgment stands, the Committee thinks that the removed sections of s.40 should be reintroduced, so employers can be responsible for failing to take reasonable steps to protect staff from harassment from third parties. This should be the case even if there have been no previous incidents of third party harassment.

  1. Extend protection to cover interns and volunteers

The Women & Equalities Committee maintains that everyone should be entitled to protection from sexual harassment; therefore they suggest that protections relating to harassment in the Equality Act 2010 should also cover interns and volunteers.

  1. Increase the time limit for submitting claims to Employment Tribunals

The Committee has raised concerns about the three-month time limit employees have to submit a claim to an Employment Tribunal for harassment. It argues that it does not give enough time for the parties to look at alternative ways of resolving matters, therefore it puts forward that it should be extended from three months to six months and the clock should be stopped while internal grievance procedures are being undertaken.

  1. Tackle the unscrupulous use of confidentiality clauses

The Committee is extremely troubled by some employers using confidentiality clauses to silence victims of sexual harassment. This is why it is proposing that legislation is introduced to require a standardised, government-approved confidentiality clause which sets out what disclosures are protected under whistleblowing laws and what cannot be banned or limited. 

Director of Legal Services

James Tamm

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