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Farrer & Co | Turning the tables: ending sexual harassment at work

Following on from my colleague Amy Wren's post on gagging clauses the week before last, the Equalities and Human Rights Commission (EHRC) has now issued its report last week "Turning the Tables: Ending Sexual Harassment at Work".

The message in the report is a very clear one: the evidence gathered about British workplaces shows that employers are not adequately protecting their employees from sexual harassment.

Rebecca Hilsenrath, Chief Executive of the EHRC, is quoted as saying that, "Corrosive cultures have silenced individuals and sexual harassment has been normalised...We need urgent action to turn the tables in British workplaces; shifting from the current culture of people risking their jobs and health in order to report harassment, to placing the onus on employers to prevent and resolve it."

The aim of the EHRC's report was to seek to understand the scale of sexual harassment in British workplaces, and what victims felt should be done to improve practice. Between December 2017 and February 2018, they gathered evidence from around 1,000 individuals and employers, via an online questionnaire.

Following a review of this evidence, the EHRC published its report which sets out their key recommendations for change.

At the start of the report, the EHRC summarised the key data about those individuals who completed the report:

  • Nearly all of those who responded to the online questionnaire and who had been sexually harassed were women.
  • Another common theme in responses was the existence of a power imbalance between the perpetrator and the person being harassed.
  • There was an emphasis on a reluctance to report. About half of the respondents hadn't reported the harassment to anyone in the workplace. The top reporting barriers listed were, 1) the view that the organisation would not take the issue seriously; 2) a belief that the perpetrator would be protected if they were a senior member of staff; 3) a fear of victimisation; and 4) a lack of appropriate reporting procedures.
  • A lack of employer action - in around half of the cases where individuals did report the incident, respondents said that their employers took no action.
  • Negative consequences of reporting - in many cases respondents reported that their employer's response was a negative one.

The key recommendations made by the EHRC for the government to consider are as follows:

1. To introduce a mandatory duty on employers to take reasonable steps to protect workers from harassment and victimisation in the workplace.

  • The EHRC stated that this could be achieved by the government introducing a statutory code of practice on sexual harassment and harassment at work.
  • The EHRC stated that this would enable them to take enforcement action against firms for failure to take preventative steps, which would help bring about a cultural shift.
  • For employment tribunals to have the power to apply an uplift to compensation in harassment claims of up to 25% for a breach of any mandatory element of this new code. Employers will be aware that the principle of applying up to a 25% uplift or reduction to compensation already applies in the context of unfair dismissal claims where employers or employees have failed to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.
  • The UK government should develop an online tool which facilities a more effective way for individuals to report of sexual harassment at work.

2. Promoting transparency

  • The UK government should collect data from across England, Scotland and Wales every three years, which should then be broken down by protected characteristics. This should include the publication of measures taken to subsequently tackle the problem since previous reports.
  • Employers should all have and should publish their sexual harassment policy in an easily accessible part of their external website.


3. Non-disclosure agreements and confidentiality

  • The UK Government should introduce legislation making any contractual clause which prevents disclosure of future acts of discrimination, harassment or victimisation void.
  • The proposed statutory code of practice on sexual harassment and harassment at work should (subject to consultation on the code) set out:
  • - 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.
  • This is in line with our advice as set out in Amy Wren's article on gagging clauses, as mentioned above.
  • The EHRC also suggests that confidentiality clauses should only be used at the employee's request, and states that a statement should be annexed to the settlement agreement explaining why confidentiality clauses have been included and what the effect of them is.

4. Strengthen employee protection

  • The EHRC has stated that the limitation period for harassment claims in an employment tribunal should be extended to six months rather than three.
  • If a claim is brought out of time, they have argued that the burden of proof should be on the employer to state why the deadline should not be extended, rather than the other way round.
  • They have stated that interim relief provisions for harassment and victimisation claims should be introduced. The impact of this is that it would provide employees (if successful in making such an application) with financial assistance prior to the outcome of the final hearing.
  • Allowing employment tribunals to make recommendations about the wider workforce, rather than solely about the employer's treatment of the individual claimant.

The Government has responded to the EHRC's reporting by condemning all forms of workplace harassment and promising to keep matters under review. Yet, it has also reportedly stated that "we believe existing laws provide protection for both men and women in the working environment".

Whether any actual regulation or other action comes about as a result of this report is doubtful – the government's plate is rather full at the minute. However, a lack of government action should not stop employers taking steps themselves to tackle the risk of workplace harassment. A number of the EHRC's recommendations make good sense and are likely to be quick wins for employers – implementing policies; carrying out diversity training; making it easier to report harassment; ensuring those who do report are protected from victimisation. However, as we have reported before, such as in Kathleen's Heycock's piece on active bystander training, it will take innovation and cultural change to truly shake up a system which has allowed harassment to go unchecked for so long. No one is saying that is easy, but with the sexual harassment movement likely to run and run, if ever there was a time to take it on, now is likely to be it.

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