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Women and Equalities Committee makes far reaching recommendations on preventing and dealing with sexual harassment in the workplace

  • United Kingdom
  • Education - Briefings

09-08-2018

The issue of sexual harassment has been a high profile one now for well over 12 months with widespread local and national coverage across multiple sectors and jurisdictions. This has included copious discussion and analysis of the issue in the education sector.

In our briefing of 18 May 2018 we referred to the Women and Equalities Committee’s inquiry into sexual harassment in the workplace. The Committee has now published its report containing its conclusions and recommendations on the following 5 areas:

• Putting sexual harassment at the top of the agenda

• Requiring regulators to take a more active role

• Making enforcement processes work better for employees

• Cleaning up the use of non-disclosure agreements (NDAs)

• Collecting robust data

Amongst the recommendations are the introduction of a mandatory duty on employers to take reasonable steps to protect workers from harassment and a statutory code of practice; the reintroduction of liability for third party harassment; a widening of the Public Sector Equality Duty; various changes to the employment tribunal system where claims of sexual harassment are brought and a limitation of the circumstances in which non-disclosure agreements can be used and the wording that they can contain.

It remains to be seen which recommendations, if any, will be implemented by the Government (particularly given that a number relate to legislative provisions that have recently been repealed) and the timescales involved. Nevertheless, institutions will be interested in the topics covered by the report; and the implications of any changes to policy or legislation around sexual harassment. We therefore consider each of these in turn.

Putting sexual harassment at the top of the agenda

The Committee believes that employers have failed to tackle workplace sexual harassment and that the Government needs to demonstrate that tackling such behaviour in the workplace is a priority by ensuring that this is at the top of the agenda for employers. Indeed the Committee contrasts unfavourably what it believes is the lesser emphasis on tackling sexual harassment compared with the “stringent requirements” placed on employers in protecting people’s personal data and preventing money laundering.

In its evidence given to the inquiry, the Equalities and Human Rights Commission (EHRC) argued that a mandatory duty should be placed on employers to take reasonable steps to protect workers from harassment and victimisation in the workplace and that breach of such a duty should constitute an unlawful act which would be subject to enforcement action by the EHRC. The EHRC thought this would be helpful as it would not then need to be concerned with whether or not individual acts of harassment had occurred, but instead could take action if it believed that the employer was not taking adequate steps to protect its staff.

Whilst not all those giving evidence to the inquiry believed that a mandatory duty was necessary, the Committee has agreed with the EHRC and recommends that the Government should place a mandatory duty on employers, with a breach “carrying substantial financial penalties”.

The Committee also recommends that the duty should be supported by a statutory code of practice setting out guidance on matters such as:

• reporting systems and procedures, including guidance on anonymous reporting and any relevant data protection issues that arise

• support for victims, including access to specialist support and steps that should be taken to prevent victimisation of complainants

• how to investigate and record complaints, including a presumption that all complaints should be investigated unless there is a compelling reason not to

• how to identify when sexual harassment allegations may include criminal offences and how to conduct any investigation in a manner which does not prejudice any potential police investigation and criminal prosecution

• training, induction, risk assessments and other policies and practices

• alternative dispute resolution including mediation, and risk assessments

Another recommendation is that the Government should ensure that all public sector organisations take immediate action to protect workers from sexual harassment and that, in the interim period before the mandatory duty is in place, it should direct public service employers to take immediate action to tackle and prevent sexual harassment in the workplace, including setting out unacceptable behaviours, how cases will be handled and the penalties for perpetrators. The report does not clarify what it means by “public sector organisations”, so it is not clear whether this would extend to any parts of the education sector, though the reference to directing “public service employers” might suggest this would not apply to HEIs or further education colleges.

However, a further recommendation is that the Government should introduce a specific duty under the Public Sector Equality Duty to require relevant public employers to conduct risk assessments for sexual harassment in the workplace and to put in place an action plan to mitigate those risks. Action plans should set out how cases will be investigated and include guidance on penalties for perpetrators. Reference to the PSED implies that this would apply to education institutions.

The Committee has also considered whether legislation should be introduced to prohibit harassment of an individual by someone who is not an employee or worker of the individual’s employer. This so called “third party harassment” would therefore extend liability to others such as contractors, customers or students. Third party harassment was of course unlawful under section 40(2) to (4) of the Equality Act 2010, which made the victim’s employer liable for the harassment by third parties provided it had failed to take such steps as would have been reasonably practicable to prevent the harassment, and knew that the victim had been harassed in the course of their employment on at least two other occasions by a third party (whether or not the third party was the same person on each occasion). However, this provision was repealed by the Government on 1 October 2013 on the basis that it believed the ability to bring claims in such circumstances already existed, including under the general harassment provisions contained within section 26 of the Equality Act.

However, the Court of Appeal recently held in the case of Unite the Union v Nailard that the repeal of section 40(2) to (4) meant that the 2010 Act no longer contains any provision making employers liable for failing to protect employees against third party harassment and that section 26 only applied where the employer’s failure to prevent third party harassment occurred because of the employer’s own discriminatory motivation.

On this basis the Committee has recommended that, assuming the judgment in Nailard stands, the Government should bring forward legislation to place a positive duty on employers expressly to protect workers from harassment by third parties and to ensure that employers can be held liable for failure to take reasonable steps to protect staff from third party harassment. Interestingly, this goes further than the provisions under section 40(2) to (4) as the Committee recommends that the legislation should apply irrespective of whether there have been any previous occurrences of third party harassment.

Finally, in this section, the Committee recommends that the Government should make it clear that the protections relating to harassment in the Equality Act 2010 extend to interns and volunteers and that the Government should work with Acas, the EHRC and employers on an awareness-raising campaign.

Requiring regulators to take a more active role

The Committee states that it has been “surprised and disappointed by the failure of regulators to take an active interest in employers’ actions to protect workers from sexual harassment”, being particularly critical of the Health and Safety Executive (HSE).

It therefore recommends that the Government should require all regulators to put in place an action plan setting out what they will do to ensure that the employers they regulate take action to protect workers from sexual harassment in the workplace and that regulators make it clear that sexual harassment by regulated persons is a breach of regulatory requirements which must be reported to the appropriate regulator.

Making enforcement processes work better for employees

The Committee believes that there is a lack of support for victims of sexual harassment in the workplace and that the systems which should help those who want to bring a complaint are not working well enough.

In addition to the introduction of the mandatory duty and the statutory code of practice referred to above, the Committee has made the following recommendations in relation to the employment tribunal system:

• tribunals should be able to award punitive damages and there should be a presumption that employers which lose a discrimination case in which sexual harassment has been alleged will normally be required to pay the employee’s costs

• the time limit for lodging a tribunal claim in cases of sexual harassment should be extended to six months and this time should not run until the employer’s internal grievance procedures have been completed

• lifelong anonymity should be given to claimants alleging sexual harassment, they should not be cross-examined in the tribunal by the alleged perpetrator and regular specialist training on sexual harassment should be provided for employment tribunal judges hearing such cases

• the Government should introduce a more tailored version of the statutory questionnaire procedure which was repealed in 2013 and should consult on whether standardised questions could be developed specifically for claims in which sexual harassment is alleged

• the Government should consider reintroducing the provisions which were repealed in 2015 giving employment tribunals powers to make wider recommendations to employers in discrimination cases

Cleaning up the use of non-disclosure agreements (NDAs)

The Committee defines an NDA as a contractual provision in an employment contract or settlement agreement that restricts what individuals can say, or who they can tell, about something. The Committee says it is concerned that NDAs are being “widely used to silence victims of sexual harassment in the workplace and to prevent cases being brought into the public eye for fear of bad publicity”.

Whilst such clauses are void insofar as they seek to prevent a protected disclosure under whistleblowing legislation, an individual signing an NDA may not be aware of that or, even if they were aware may, according to the Committee, need to take legal advice on whether they are entitled to protection. The Committee therefore recommends that the Government should legislate to require the use of standard, approved confidentiality clauses - setting out in plain English the meaning, effect and limits of confidentiality clauses, including a clear explanation of what disclosures are protected under whistleblowing legislation and cannot be prohibited or restricted.

In addition, the Committee recommends that the definition of protected disclosures and prescribed persons under whistleblowing legislation should be widened to include disclosures of sexual harassment to the police and all regulators (including the EHRC and HSE) and to any court or tribunal and that it should be offence for an employer or their professional adviser to propose a confidentiality clause designed or intended to prevent or limit the making of a protected disclosure or disclosure of a criminal offence.

Collecting robust data

The Committee has concluded from its inquiry that there is a lack of awareness as to the extent of sexual harassment in the workplace, the number of complaints brought under internal grievance procedures and the effectiveness of different means of resolution. It believes that “robust and comparable” data must be collected at regular intervals in order to gauge the effect of any actions now being taken to “stamp out” sexual harassment in the workplace.

Consequently the Committee recommends that the Government should:

• collect data on the number of employment tribunal claims brought involving allegations of harassment of a sexual nature and the outcome of such claims

• commission large-scale surveys at least every three years to determine the prevalence and nature of sexual harassment in the workplace, with the findings of each survey being accompanied by an evaluation of measures taken in the preceding period to tackle sexual harassment and an action plan responding to the findings

Please contact us for more information on the Committee’s report or how we can support institutions in managing sexual harassment complaints and making sure their policies are fit for purpose.

For more information contact

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