Tackling sexual harassment - Winckworth Sherwood LLP

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The Equality and Human Rights Commission’s recent report “Turning the tables” based on 750 responses makes sombre reading:

“Nearly all of the people who had been sexually harassed were women. Male respondents were more likely to state that they had supported a colleague or witnessed harassment, or that they had not experienced sexual harassment at work. While sexual harassment can be perpetrated by both men and women, we know that women are most often the targets. Harassment in the workplace reflects power imbalances based on gender and is part of a spectrum of disrespect and inequality that women face in everyday life.

The most common perpetrator of harassment was a senior colleague. However, just under a quarter reported being harassed by customers, clients or service users.

Around a quarter of those reporting harassment said that the perpetrators were third parties such as customers or clients. Respondents reported that this type of sexual harassment was dealt with particularly poorly. Many of these submissions were from individuals working in the hospitality industry, although other industry sectors were also represented. A common theme was a lack of management support, with sexual harassment and assault apparently being viewed by some employers as a ‘normal’ part of the job. A number of those experiencing sexual harassment by customers felt that they had no option but to put up with this if they wanted to continue in their job

Around half our respondents hadn’t reported their experience of harassment to anyone in the workplace. Barriers to reporting included:

the view that raising the issue was useless as the organisation did not take the issue seriously
a belief that alleged perpetrators, particularly senior staff, would be protected
fear of victimisation, and
a lack of appropriate reporting procedures.

One respondent told us that they ‘felt too intimidated to go to senior management as all were male and colluded with harassment’. A number of respondents, in particular younger workers and those not on permanent contracts, believed they would be risking their jobs if they complained.

Inexperienced, unsupportive managers were also seen as barriers to reporting harassment. In many cases, sexual harassment was viewed as a problem that the individual – rather than the employer – had to deal with. Some people were advised against reporting incidents by managers or HR. One respondent said: ‘I was advised against reporting an incident as it would “damage my brand”.’

In around half of the cases where individuals did report the incident, respondents said that employers took no action as a result. Many other respondents described instances where their employers’ response to a report of sexual harassment was to try to minimise their complaint or silence them. One person said: ‘I was called in to a meeting with the accused and his boss, and told it was a misunderstanding.’ Another respondent who had supported a colleague described a situation where ‘the company acted as if the victim was the problem and tried to get her not to make a formal complaint’. A number of people who reported sexual harassment were treated as ‘trouble makers’. One individual told us: ‘[Managers] said I was the problem. I need to rein my neck in.’

A common theme among individuals who reported sexual harassment was a feeling that their employer did not take them seriously, dismissing the reported case as merely ‘a bit of fun’ or ‘laughing it off as boys being boys’. In a number of these cases, it was clear that other people had complained about the same person previously and that the perpetrator’s actions were widely known.”

The Commission made a series of recommendations:

Making employers take their responsibilities seriously

There should be a mandatory duty on employers to take reasonable steps to protect workers from harassment and victimisation in the workplace breach of which would constitute an unlawful act for the purposes of the Equality Act 2006, which would be enforceable by the Commission.
Arguably this duty already exists under the Health and Safety at Work Act but certainly the HSE have never enforced it in the context of sexual harassment. A new duty will be meaningless without the Commission having the resources to enforce it, and to put it mildly funding for the EHRC has not been a priority for the Government.
There should be a statutory code of practice on sexual harassment and harassment at work, specifying the steps that employers should take to prevent and respond to sexual harassment, and which can be considered in evidence when determining whether the mandatory duty has been breached. Employment tribunals could apply an uplift to compensation in harassment claims of up to 25 per cent, at their discretion, for breach of mandatory elements of the statutory code.
This would be a welcome change, giving both employers and the Tribunal useful guidance and the Tribunal some powers to encourage a more responsive culture.
Employers should have to publish their sexual harassment policy and the steps being taken to implement and evaluate it in an easily accessible part of their external website and ensure it explicitly addresses their obligations under the Equality Act 2010 in respect of workers supplied to them by third parties and they should ensure it is shared with organisations supplying staff and services and that workers supplied are aware of the policy and how to report instances of sexual harassment.
If this were to be introduced we would expect it to be for employers with more than 250 employees (i.e. those having to report the gender pay gap) as there is presently no legal obligation on an employer to have a website. A surprising omission from the recommendations is any suggestion that sexual harassment cases should be used as part of public procurement vetting.

Encouraging transparency about harassment

Any contractual clause which prevents disclosure of future acts of discrimination, harassment or victimisation should be void and the statutory code should set out the 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.
These provisions may be overkill given that any clause which seeks to stop anyone from making a protected disclosure which they believed was in the public interest is unlawful and there are already requirements on lawyers to ensure that the right to make a protected disclosure is explicitly preserved.

Helping more victims win Tribunal claims for harassment

The limitation period for harassment claims in a Tribunal should be amended to from 3 months to 6 months from the latest of the date of the act of harassment, the last in a series of incidents of harassment, or the exhaustion of any internal complaints procedure and in claims brought out of time, once the claimant has established the reason for delay, the burden of proof should shift to the respondent to establish why time should not be extended.
At present only equal pay and statutory redundancy claims have a six month time limit and no limitation periods run from the exhaustion of an internal complaints procedure. A change in the law here would be justified given the traumatic nature of harassment.
There should be interim relief provisions for harassment and victimisation claims with a deadline of one month from the act of harassment, or the last in a series of acts of harassment, to make an application.
Interim relief is a rarely used remedy for certain cases of automatic unfair dismissal (making a protected disclosure, union membership or activity, activities as an employee representative) and has to be applied for within 7 days of the dismissal. If the Tribunal thinks the employee is likely to win the case it may order the employer to reinstate or re-engage them or for them to be paid as if still employed but without them having to work. This remedy does not sit well with harassment and victimisation where there may have been no dismissal.
The power for Tribunals to make recommendations aimed at reducing the adverse effects of discrimination on the wider workforce should be restored.
The Coalition government removed this 40 year old power and its return would be welcome; allowing Tribunals to tackle wider issues.
Restore the questionnaire procedure in employment-related discrimination and harassment claims.
The Coalition removed this longstanding mechanism to help employees establish if they may have a claim of sex discrimination by helping to identify comparators. It was rarely much use in harassment cases as no comparators are need to establish harassment.
The requirement for the employer to know that the employee has been subjected to two or more instances of harassment before they become liable should be removed.
This would return the law to what it was before the Coalition Government interfered with the operation of the Equality Act.

What next?

The Government’s response has been non-committal so far “This Government condemns all forms of workplace harassment, which is unlawful under the Equality Act. We are looking at all aspects of this wholly unacceptable behaviour, including the use of non-disclosure agreements. We welcome the EHRC’s input into the debate about sexual harassment. We believe existing laws provide protection for both men and women in the working environment; however, we will continue to keep the operation of the legislation under review, to ensure that it works as intended.”

There is no official response to the report on the Government’s Equalities Office website which does not bode well for the chances of the recommendations anytime soon. The EHRC may have more joy with the Opposition.

In the meantime all employers should be thinking about the effectiveness of their policies on sexual harassment – the best written policy in the world is useless if the values that underpin it are not being followed in the organisation.

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