Sexual harassment in the workplace
Sexual harassment continues to be an important issue in the workplace, with concerns that many employers have insufficient policies and procedures in place to appropriately address complaints raised by employees. The media coverage of recent scandals and the #MeToo movement has also highlighted the importance, and scale, of the issue.
To that effect, on 5 December 2018 the government published its response to the Women and Equalities Committee’s report on Sexual Harassment in the Workplace. This briefing note summarises some of the key government responses.
One of the most encouraging recommendations adopted from the report was the agreement by the government to introduce a statutory Code of Practice to enable employers to better understand their legal obligations and responsibilities in relation to sexual harassment and harassment more generally, and to raise awareness in relation to appropriate workplace behaviours. The government also believes that the Code will serve as a useful tool for employers to understand and demonstrate that they have taken “all reasonable steps” to prevent harassment. The Equality and Human Rights Commission will develop a statutory Code (with government assistance) which clearly explains the actions an employer must take to fulfil their legal responsibilities regarding sexual harassment. The government has also confirmed that LGBT harassment is to be included in all sexual harassment policies and guidance issued by ACAS and the government Equalities Office.
The government agreed that employers should protect employees from third party harassment when they are aware staff are at risk. To this end the government proposes to consult on how to strengthen and clarify laws in relation to third party harassment.
In its response the government stated that volunteers and interns should be safe from sexual harassment in the course of their programmes, and acknowledged that these categories of people might not fall within the definition of “employee “under the Equality Act 2010. However the government rejected the Committee’s proposal to extend the scope of protection offered by that Act to include volunteers and interns, as they are afforded protection from harassment elsewhere in law. The government committed to taking steps to ensure these avenues are better understood and will consult to see if additional protections are required.
The government also agreed with the Committee’s recommendation to collect regular data on the prevalence and nature of workplace sexual harassment. The government will commence work to scope and commission a survey to deliver this information, and expects that a data collection survey will run every three years and is expected to launch sometime during 2019.
In its response the government recognised the concerns regarding the non-ethical use of Non-Disclosure Agreements (NDA), and agreed that this area required better regulation and a clearer explanation of rights which workers cannot “abrogate” by signing a NDA. The government also agreed that explanations to workers must be clear. It has committed to consulting on the best way to achieve this, including the Committee’s recommendation for a standard approved confidentiality clause and exploring possible enforcement approaches.
Whilst the government agreed with the Commission’s recommendation that victims of sexual harassment must have access to appropriate remedies, it was ultimately of the view that the existing remedies in place for discrimination, harassment and victimisation offer a significant deterrent to employers and compensation for workers. Thus it rejected the Committee’s recommendation to improve the remedies that can be awarded by a tribunal.
Following a recommendation from the Committee the government confirmed that tribunals have the discretion to award punitive damages, and confirmed that it would bring forward legislation to raise the maximum limit of an aggravated breach penalty from £5,000 to £20,000 as soon as Parliamentary time allows. However, the government disagreed with the Commission’s recommendation to introduce a presumption that tribunals would require an employer to pay for the employee’s legal costs where the employer loses a discrimination case involving sexual harassment.
With regards to the Committee’s recommendation to extend the time limits for bringing sexual harassment claims to six months, the government confirmed that the Law Commission is already consulting on the extension of tribunal time limits for all claims. The government stated that it would consult separately, specifically in relation to the proposal to extend time limits for bring a claim from three months to six months. The government confirmed that tribunals can grant time extensions where it is just and equitable to do so, and committed to ensuring that this discretion and its process is better known.
Following the Committee’s recommendations the government has made a number of commitments to enhance the understanding of sexual harassment at work and the avenues employees can pursue should this occur. Whilst making any prediction about government action is a difficult business at present, 2019 may bring some interesting alterations to employer practice in relation to sexual harassment.