On the 25th July 2018, the parliamentary Women and Equalities Commission published their report in to sexual harassment in the workplace, along with their recommendations.
The report was commissioned in response to the increase in media coverage of allegations of sexual harassment in the entertainment industry. Whilst the committee were unable to rely on official figures from the Government or the Employment Tribunals, they were able to reference surveys that had been commissioned by various news and media outlets in light of the prevalent #MeToo movement.
One such survey, by ComRes for the BBC in November 2017, found that 29% of all employees, of all genders, had experienced some form of unwanted sexual behaviour in the workplace. These incidents ranged from displays of pornographic material and unwelcome jokes or comments of a sexual nature, to serious sexual assaults.
The report found that there are specific groups that are disproportionately affected or susceptible to sexual harassment at work, such as young women between the ages of 18 and 24, employees with a disability or long-term illness, and members of sexual minority groups. Also, those workers with irregular, flexible or precarious employment contracts, which are most common in the services sector, were also more likely to experience sexual harassment.
The lack of action by employers to prevent and address sexual harassment in the workplace was brought in to sharp focus when the Commission considered the responses to a questionnaire sent by the Equality and Human Rights Commission‘EHRC’ to large employers in December 2017. The responses to the questionnaire indicated that only a very small percentage of large employers had effective policies in place to prevent or address sexual harassment at work.
The Commission recognised the need for employers to provide a workplace where employees have safety and dignity, and that employers should consider this obligation no less important than other corporate responsibilities such as preventing money-laundering and protecting personal data.
In line with this requirement, the Commission agreed with the EHRC that a mandatory duty should be imposed on employers to protect employees from harassment and victimisation in the workplace, and that any breach of this duty would be unlawful and would result in fines being levied against employers by the Commission.
The Commission found that this mandatory obligation would relieve the current burden on employees in having to go through traumatic internal grievance processes and possibly even more traumatic, protracted legal action via the Employment Tribunal, simply to remedy a terrible situation in the workplace.
In addition to the above, the Commission made the following recommendations:
– A duty for public sector employers to conduct risk assessments for sexual harassment and take steps to mitigate the risks of sexual harassment or unwelcome behaviour of a sexual nature in the workplace. This obligation already exists under the Public Sector Equality Duty, but to date, there has not been enough focus on preventing sexual harassment, and this should be addressed immediately.
– Reintroducing s.40 of the original Equality Act 2010, which prevented ‘third-party harassment,’ from clients, customer, or even a colleague with a different employer. Following a Government consultation, s.40 of the Equality Act was repealed in 2012 as it was found to be not fir for purpose.
– Widening the scope of the Equality Act 2010 to protect interns and volunteers from sexual harassment in the workplace. Currently, they are not considered workers for the purposes of the Act, and so do not receive the same protections
– Regulators have obligations under the Public Sector Equality Duty, and they should be held to account for failures within their respective industries, when they fail to properly hold employers to account when they fail to take reasonable steps to protect workers from sexual harassment.
– Extending the time limit for bringing a claim for sexual harassment to 6 months, instead of the current limit of 3 months (less a day). This new time limit would also be extended by any time spent going through an employer’s internal grievance or appeal process.
– Allowing Tribunals to award punitive damages, and so to also costs to be awarded to a claimant where they have been successful in a sexual harassment claim. This would counter the current position where the cost of bringing a claim far outweigh any potential injury to feelings award which would typically be awarded.
– The reintroduction of a statutory questionnaire that would require employers to provide information that would possibly support a claim for discrimination. s.138 of original the Equality Act 2010 contained a provision for a statutory questionnaire, which is not answered within 8 weeks, or was evasive, would allow negative inferences to be drawn against an employer, however, it was repealed following a Government consultation in 2013.
– The introduction of Government approved standard confidentiality clauses for use in Non-Disclosure Agreements and Settlement Agreements, and that it would be considered a professional disciplinary offence for lawyers to suggest the use of non-approved clauses.
Following on from this report, the Commission have also announced they are launching an investigation in to enforcement of the Equality Act and how it can be improved, which is due to be published sometime in 2019. Any views on the current enforcement of the Equalities Act 2010 can be made to the Commission here.
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