Summary
Sexual harassment in the workplace is widespread and commonplace. It is shameful that unwanted sexual behaviours such as sexual comments, touching, groping and assault are seen as an everyday occurrence and part of the culture in workplaces. A BBC survey in November 2017 found that 40 per cent of women and 18 per cent of men had experienced unwanted sexual behaviour in the workplace. These behaviours are unlawful, but the Government, regulators and employers have failed to tackle them, despite their responsibilities to do so under UK and international law. As a result these legal protections are often not available to workers in practice. The #MeToo movement has put sexual harassment in the spotlight, but it is not a new phenomenon. Employers and regulators have ignored their responsibilities for too long.
It is time for the Government to put sexual harassment at the top of the agenda. Currently, there is little incentive for employers and regulators to take robust action to tackle and prevent unwanted sexual behaviours in the workplace. In contrast, there is considerable focus on protecting people’s personal data and preventing money laundering, with stringent requirements on employers and businesses to meet their responsibilities in these areas. They should now put the same emphasis on tackling sexual harassment.
The effects of sexual harassment can be traumatic and devastating, but there is a lack of appropriate support for victims within the workplace. The lack of action by employers and regulators to tackle this problem means that the burden of holding harassers and employers to account rests heavily on the individual. However, many victims will not want to take forward a complaint for fear of victimisation, or because they cannot trust their employer to take robust action. For those who do take forward a grievance through their employer’s internal procedures or at employment tribunal, these systems do not work well enough. This may explain why the number of tribunal cases appears to be so low. The tribunal system must be an effective remedy for employees, and the threat of tribunal must be sufficient to ensure that employers have proper systems in place to tackle and prevent sexual harassment. Better data is also required so that the extent of harassment and effectiveness of remedies can be more easily measured.
Non-disclosure agreements (NDAs) are used unfairly by some employers and also some members of the legal profession to silence victims of sexual harassment. While NDAs have a place in settling complaints of sexual harassment in the workplace, there is insufficient oversight and regulation of their use. It is unacceptable that some NDAs are used to prevent or dissuade victims from reporting sexual harassment to the police, regulators or other appropriate bodies or individuals. Those who use NDAs unethically in this way must face strong and appropriate sanctions.
We are calling on the Government to:
a)Put sexual harassment at the top of the agenda, by
- introducing a new duty on employers to prevent harassment, supported by a statutory code of practice outlining the steps they can take to do this; and
- ensuring that interns, volunteers and those harassed by third parties have access to the same legal protections and remedies as their workplace colleagues.
b)Require regulators to take a more active role, starting by
- setting out the actions they will take to help tackle this problem, including the enforcement action they will take; and
- making it clear to those they regulate that sexual harassment is a breach of professional standards and a reportable offence with sanctions.
c)Make enforcement processes work better for employees by
- setting out in the statutory code of practice what employers should do to tackle sexual harassment; and
- reducing barriers to taking forward tribunal cases, including by extending the time limit for submitting a claim, introducing punitive damages for employers and reducing cost risks for employees.
d)Clean up the use of non-disclosure agreements (NDAs), including by
- requiring the use of standard, plain English confidentiality clauses, which set out the meaning, limit and effect of the clause, and making it an offence to misuse such clauses; and
- extending whistleblowing protections so that disclosures to the police and regulators such as the Equality and Human Rights Commission are protected.
e)Collect robust data on the extent of sexual harassment in the workplace and on the number of employment tribunal claims involving complaints of harassment of a sexual nature.
Published: 25 July 2018