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Farrer & Co | Sexual harassment in the workplace - the Government responds to a 'call to action'

Over the last 15 months, we have seen the #MeToo movement come alive and capture the public zeitgeist. Ignited by the allegations against Harvey Weinstein and featured more recently in the wake of the “serious and repeated” allegations against retail billionaire Sir Philip Green for his sexually inappropriate behaviour, the issue of sexual harassment rightly remains an important topic. With BBC research reporting that 40% of women and 18% of men have experienced some form of unwanted sexual behaviour in the workplace, the scale of the issue is staggering and begs the question as to whether the Government should be doing more to tackle the problem.

In March of last year, the Equalities and Human Rights Commission (EHRC) published its report “Turning the Tables: Ending Sexual Harassment at Work”, which urged the UK Government to introduce a mandatory duty on employers to protect workers from sexual harassment at work. My colleague Alice Yandle covered the key findings of this report in a previous blog post.

This was followed, in July, by a report by the Women and Equalities Select Committee (WESC) on ‘Sexual harassment in the workplace’. The WESC said that ‘providing a workplace where employees have safety and dignity is no less important than other corporate responsibilities’ and emphasised that their report was a ‘call to action’.

The report made a number of recommendations, urging the Government to take a more robust stance against sexual harassment in the workplace. The report’s key message was that the issue of sexual harassment should be at the top of the Government’s agenda, and, regulators and employers also need to take a far more proactive role.

The Government’s response

Five months after the WESC report was published, the Government has responded with its own list of broad action points.

Some of the WESC’s recommendations have been accepted and will be implemented:

  • the Government will work with the EHRC to develop a statutory Code of Practice on sexual harassment. The response emphasised that employers already face liability (under the Equality Act 2010) for sexual harassment by one employee against another unless the employer can show that they have taken reasonable steps to prevent harassment. Seemingly however, employers ‘do not know what all reasonable steps’ actually are. The Government hopes that the Code will help improve employers’ ability to ‘engage with their existing responsibility’

  • the Government will raise the maximum limit of the penalty that employment tribunals can impose for an aggravated breach from £5,000 to £20,000. In fact, the Government had already committed to doing this, as part of its response to the Taylor Review on modern working practices (covered in David Hunt’s blog last week), and if the draft Employment Rights (Miscellaneous Amendments) Regulations 2019 are approved, the measure will come into force on 6 April 2019, and

  • the EHRC will be added to the list of prescribed persons to whom protected whistleblowing allegations can be made.

Other recommendations are not set to be implemented but the Government has said it will ‘consult’ on the following:

  • whether or not to introduce a mandatory duty to protect workers from sexual harassment. The Government appears slightly sceptical as to whether introducing a duty would be necessary, suggesting in its response that its proposed Code of Practice would have the same impact

  • how best to strengthen and clarify laws in relation to third party harassment and that sexual harassment should be taken into consideration when considering the fitness and propriety of the individual

  • whether new measures are needed to protect interns and volunteers from sexual harassment (such as an amendment to existing legislation)

  • whether to extend tribunal time limits from three months to six months, and

  • how better to regulate the use of NDAs, including how best to inform workers of their rights under these agreements.

The Government has also promised to commission a survey to gather data on the prevalence and nature of workplace sexual harassment, to engage more with regulators and to work to raise awareness of appropriate workplace behaviours and individual rights.

What next?

Whilst the Government’s response clearly identifies the need to raise awareness of the scale of the issue, it does not seem to include any new radical proposals, nor are there any firm timescales for any of the announced measures, other than the proposed date for the increase in aggravated damages limit in April of this year.

Nevertheless, a new Code of Practice will provide welcome guidance for both employers and employees. With more prescriptive guidance on how to comply with requirements under the Equality Act 2010, it will be much harder for employers to avoid responsibility for tackling sexual harassment which takes place within their workforce.

Now, more than ever, ignorance of employers’ legal duties will not be an excuse for failing to deal with sexual harassment and protecting employees.

In the meantime, if you are an employer and would like practical guidance on how to deal with sexual harassment allegations, please refer to  Robert Lewis’s earlier blog, or contact a member of our Employment team.

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