“What Will It Take?” Exploring work-related sexual harassment in schools

Insight

27.10.2021

In this piece, Maria Strauss, Employment and Safeguarding Partner at Farrer & Co reflects on the consequences of the MeToo movement and considers the Government’s recent report on work-related sexual harassment with a new duty on employers on the horizon.
In 2017, when Hollywood stars began sharing their experiences of work-related sexual harassment on social media few could have predicted the many ramifications that would eventually be felt by employers here including independent schools.

The impact of “#MeToo” has been wide ranging:

An increased public awareness of work-related sexual misconduct;
A growing confidence with individuals reporting issues leading to more disclosures;
An expectation on employers to handle disclosures properly;
A sharper focus on robust investigations and the consistent application of sanctions; and
An increase in employers considering other measures such as ”relationships at work” policies, bystander programmes and culture reviews.

On the legislation and policy side, #MeToo led to:

Warnings to employers (and lawyers) about the use of non-disclosure agreements / confidentiality clauses in sexual misconduct cases as well as guidance from ACAS on NDAs.
New technical guidance from the Equality and Human Rights Commission (EHRC) in January 2020.
A Government consultation which launched in 2019 the outcome of which was reported recently in July 2021.

#MeToo must surely also have helped drive the more recent Everyone’s Invited movement which has led to many thousands of disclosures of sexual violence between young people.

The net effect of MeToo is that independent schools, similar to other employers, will be expected to have their house in order when it comes to the subject of work-related sexual harassment.

New Government Report

The report from the Government consultation published in July 2021 and referred to above noted that:
“Sexual harassment in the workplace has been prohibited by law for decades, yet this unacceptable conduct and its damaging effects continue. The revelations that have emerged in recent years have made it abundantly clear that this is a problem that persists in our society, despite the existence of these legal protections. The law alone cannot fix this problem.”
Whilst the prevalence of work-related sexual harassment has been known for years, the report confirmed that over half of the respondents (54 per cent) had experienced harassment at work.

In the teaching profession, a survey in 2018 reported that four in five teachers believed they had suffered sexual harassment or bullying in the workplace and that sexual harassment had come from pupils, parents, colleagues or managers.

The damaging consequences of sexual harassment should not be underestimated and include:

Low morale amongst staff (which can lead to absenteeism or presenteeism).
Talented staff leaving.
Reputational damage due to media interest.
Depression, anxiety, trauma, PTSD or other health consequences for victims.
Loss of management time and legal cost dealing with the issues.
Exposure to grievances, complaints, legal claims and even investigations by outside agencies and regulators.

What else did the report confirm?

The original consultation considered a number of relevant areas including:

How to ensure employers take preventative steps on harassment.
The law surrounding employers protecting their staff from being harassed by clients, customers, or other people from outside their organisation (ie third party harassment).
Whether people should be given longer to take a harassment, discrimination or victimisation claim to an employment tribunal.

Whilst further guidance is awaited, what is clear from the report is that the Government intends to:

Place a further responsibility on employers to take preventative measures by introducing a positive duty requiring them to prevent sexual harassment. Details of this new duty are awaited however the Government has said that it will support the EHRC to develop a statutory code of practice on sexual harassment building on the technical guidance published in January last year. The Government has also committed to producing accessible guidance to provide further clarity on what employers need to be doing to abide by their obligations;
Reintroduce explicit protections from third party harassment (in the school context this could be parents). Note that the Equality Act 2010 had previously contained protections under which an employer failed to take such steps as would have been reasonably practicable to prevent it and knew that the employee had been harassed in the course of their employment on at least two other occasions by a third party but these were repealed in 2013 however, the technical guidance from the EHRC makes clear that “While there is no specific protection against third party harassment under the Act, employers should still take reasonable steps to prevent third party harassment. Harassment by a third party can be just as devastating for a worker as harassment by a fellow worker. Employers who do not take reasonable steps to prevent or respond to third party harassment may be liable under other sections of the Act or other legislation in certain circumstances as set out in the following sections of this guidance.”
There is no change yet to increase the time limits for bringing harassment claims to the Employment Tribunal but the Government has committed to looking closely at extending the current time limit of three months to six months.

What does this mean for Schools as employers?

Schools should prepare for these changes on the horizon by reading the Government report and taking steps to consider their anti-harassment strategies. This includes:

Reviewing staff Codes of Conduct to ensure they reflect the values of the school and are clear as to the expected high standards of behaviour both in school, online and off-site.
Review anti-harassment, disciplinary and investigations policies and procedures to
- Reflect current ACAS and EHRC guidance.
- Provide schools with the power to deal with off-site behaviour and online behaviour.
- Clarify issues of privacy and confidentiality.
- Ensure that it is clear that in certain circumstances sexual harassment may also fall to be dealt with under the school’s safeguarding policy and referrals to statutory agencies might need to be made.
- Review their training programme to ensure its effectiveness and seek feedback on training. Training on sexual harassment should be delivered to Governors, the SLT as well as the whole staff body. Training should be regular, interactive, designed with the context of the school in mind rather than generic and "off the shelf". Schools should always ensure external trainers are quality-assured. Training is critical for another reason. It should be noted that in a recent case (Allay (UK) Limited v Gehlen) the Employment Appeals Tribunal provided a warning to employers that the “reasonable steps defence” (under which employers may not be legally liable for discriminatory acts of employees if they can show they have taken all reasonable steps to prevent those acts from taking place) may not be available where equality and diversity training has been a “tick box” exercise. In this case, the EAT upheld a ruling that the training had gone “stale” following a two-year period in which there was no refresher provided to employees.
Understand key terminology and what it means in practice to be “zero-tolerance”, “trauma – informed” and “survivor – focused”. A good explanation of these terms is contained in the following report: WHAT WILL IT TAKE? Promoting Cultural Change to End Sexual Harassment.
Whilst we wait for further guidance following the Government report, schools should consider taking a “preventative” approach by exploring proactive HR reviews to examine their culture, staff surveys, options such as positive bystander training or “champions programmes” which are common in other sectors as well as other initiatives that might encourage a “speak up” culture such whistleblowing hotlines.

A good quote that struck a chord with me shortly after #MeToo broke, came from the then Director of the Institute of Business Ethics: “a good culture liberates and empowers an organisation while keeping it safe. The benefits are there for the long term, while clearing up the mess will take a lot of time and trouble if it goes wrong”. That was true in 2017 and certainly remains true today.

If you require further information about anything covered in this briefing, please contact Maria Strauss or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

Please note this content was originally published in the Autumn 2021 edition of the Independent Schools’ Bursars Association (ISBA) termly magazine, “The Bursar’s Review”, issued October 2021, and is reproduced with the kind permission of ISBA.