In March the EHRC issued its report 'Turning the tables - ending sexual harassment at work', a timely publication given #MeToo and the recent wave of sexual harassment allegations hitting the headlines.
The EHRC received 750 responses to an online survey. Three quarters of the respondents had experienced sexual harassment at work; the rest had witnessed harassment or supported others.
- Sexual harassment can be perpetrated by both men and women, however, nearly all of those who reported sexual harassment at work were women.
- The most common perpetrator of sexual harassment was a senior colleague. However, just under a quarter reported being harassed by customers, clients or service users. This type of harassment is often dealt with particularly poorly with a lack of management support.
- Around half of the respondents had not reported their experience. Barriers included a lack of appropriate procedures; a perception that allegations would not be taken seriously; and a fear of victimisation.
- In around half of cases when harassment was reported, no action was taken. Some complainants reported negative consequences including career damage and disciplinary action.
Recommendations for change
Employers can be liable if they fail to protect their workers from sexual harassment in the course of their employment. However, there is a defence if they took 'all reasonable steps' to prevent the harassment from taking place. The EHRC wants to go a step further and make employers subject to a mandatory duty to take reasonable steps to protect workers from harassment, breach of which could lead to enforcement action.
This new duty would sit alongside a statutory code of practice on sexual harassment and harassment at work which would specify the steps employers should take to prevent and respond to sexual harassment and which can be considered as evidence when deciding whether the mandatory duty has been breached. Employment tribunals would be able to apply a 25% uplift to any compensation award in the event of a failure to comply with the code.
Other key recommendations include:
- Developing an online tool to better facilitate the confidential reporting of sexual harassment at work.
- Requiring employers to publish their sexual harassment policy on their website and communicate it to all workers (including agency workers) and organisations supplying staff and services.
- Banning clauses in non-disclosure agreements (including settlement agreements) that seek to prevent the disclosure of future acts of discrimination, harassment or victimisation.
- Introducing guidance on the use of confidentiality clauses restricting the disclosure of past acts of discrimination, harassment and victimisation. This might include, for example, giving employees a right to be accompanied when discussing the terms of a settlement agreement; and annexing a statement to settlement agreements explaining the reasons for and effect of the confidentiality clause.
- Extending the time limit for making sexual harassment complaints to the employment tribunal from three to six months.
- Re-introducing statutory questionnaires and the power to make recommendations for the benefit of the wider workforce in discrimination cases.
- Reinstating the third-party harassment provisions but removing the requirement for the employer to know that the employee had been subjected to at least two instances of harassment before becoming liable.
We will need to wait and see to what extent the government decides to adopt the EHRC's recommendations. What is clear, however, is that this report and the recent parliamentary debates on non-disclosure agreements have once again put the spotlight on sexual harassment at work. A timely reminder, therefore, to review current practice and consider whether adequate steps are being taken to protect workers against harassment. It is good practice to:
- Have an anti-harassment and bullying policy that is communicated to all workers including temporary and agency workers (and to new workers as part of the induction process).
- Implement an appropriate procedure for reporting harassment, protecting victims and taking action.
- Provide anti-harassment training for all staff (with clear examples of unacceptable workplace behaviour).
- Deal effectively with any complaints of sexual harassment, treating all allegations fairly, sensitively and in a timely manner.
- Issue a statement from senior management on the organisation'szero-tolerance approach to sexual harassment at work.
- Check whether the terms of contracts with third parties reflect a commitment to preventing harassment.
If you would like advice on dealing with harassment at work or help with drafting or reviewing a policy, please get in touch. Workbox subscribers can access the section on Bullying and Harassment which contains guidance and template policies.