Sexual harassment in the workplace Contents

2Require regulators to take a more active role

Summary

51.Regulatory regimes have a crucial part to play in setting expectations for employers. Regulators, inspectorates and professional bodies should be placing and reinforcing incentives on employers to tackle workplace sexual harassment, ensuring that it becomes and remains a high priority for the sectors and organisations they oversee. With that in mind, we find the passivity and indifference of regulators in the face of widespread workplace sexual harassment to be not only surprising, but gravely irresponsible.

The role of regulators

52.We have been surprised and disappointed by the failure of regulators to take an active interest in employers’ actions to protect workers from sexual harassment. It suggests that these bodies may not have been having due regard to the need to eliminate discrimination, including sexual harassment, under the Public Sector Equality Duty (PSED). Guidance is clear that the PSED requires regulators, inspectorates and ombudsmen to consider how to meet the duty in their functions; this includes their regulatory framework.78

The Health and Safety Executive

53.Sexual harassment in the workplace is a serious health and safety concern, but we were astonished to find that the Health and Safety Executive (HSE) does not see tackling or investigating it as part of its remit. The HSE told us that there is no specific duty under health and safety legislation regarding sexual harassment, and that law on sexual harassment was for the Equality and Human Rights Commission (EHRC) and the police to enforce.79 Its then Head of Operational Strategy, Philip White explained that the main focus of its work as it might relate to sexual harassment in the workplace was on “what we would consider violence and aggression, particularly from third parties”.80 Mr White agreed that the HSE had a role in making sure that workplaces have practices that keep people safe from violence at work, but did not agree that this included responsibility for sexual harassment—the most common form of violence against women: “We do not see this as a mainstream health and safety at work issue under the Health and Safety at Work Act”.81

54.We understand that the HSE must prioritise its use of resources, but we cannot accept that sexual harassment is not sufficiently serious to be worthy of its attention. We note that HSE guidance on work-related violence lists sexual harassment as a potential form of verbal abuse but not as a form of physical violence.82 The HSE’s website has guidance on issues including temperature in the workplace, noise levels and working with young people, but nothing specifically on sexual harassment. We are deeply concerned that the HSE’s analysis of the potential for harm caused by sexual harassment appears to be cursory and ill-informed. We suspect that this issue has simply been ignored, as it has been by employers themselves, but we are perplexed that it continues to reject the suggestion that it should now be taking action.

The Equality and Human Rights Commission

55.The Equality and Human Rights Commission has primary responsibility for regulating employer actions to tackle harassment, and has been active since December 2017 in conducting research and making recommendations for change to the Government, many of which we support. It is striking, however, that sexual harassment specifically as an area of focus did not feature in any of the organisation’s annual reports in the decade since its establishment in 2007. By contrast, the final annual report of the predecessor gender equality regulator, the Equal Opportunities Commission, published in 2007, lists reducing sexual harassment in the workplace as a strategic objective and details both enforcement work undertaken with specific employers and legal action taken to clarify the law on sexual harassment.83 The EHRC’s Legal Director, Elizabeth Prochaska, admitted that

all organisations working on this—and I count the EHRC as one of them—were caught off guard, in a sense, by the #MeToo movement and simply had been focusing on other issues over the last decade.84

56.We heard that the EHRC was, at the time of giving oral evidence, considering four potential enforcement actions in relation to sexual harassment, an increase from zero in the previous year.85 In explanation for this surprisingly low number, Elizabeth Prochaska told us that the Commission found it difficult to “get our hands on the evidence”:

Individual victims of harassment are not coming to us in significant numbers. We have not received very many requests for individual funding, nor have we been given very much evidence about particular organisations where there may be a potential enforcement action. […] There is a real issue there but that reflects the general problem with reporting of sexual harassment.86

Other bodies

57.The EHRC is not the only regulator waiting for cases and evidence to come forward. The Solicitors’ Regulation Authority (SRA) told us that there had been 23 reports of sexual misconduct by solicitors relating to their colleagues since November 2015. We put it to the SRA’s Chief Executive, Paul Philip, that this number seemed low, and asked whether he had made an assessment of how many unreported cases there might be in the profession. He responded:

No, I find it very difficult to understand how we would go about doing that. […] Basically, we would need the evidence that there is inappropriate behaviour. That would need, ultimately, for those women to come forward and all the issues that brings.87

The SRA did inform us about work it had undertaken to raise awareness about workplace sexual harassment “in light of the recent focus” on this issue; for example, a firm’s approach to preventing sexual harassment now routinely features in the rolling programme of meetings held by its Regulatory Management team.88

58.Ofsted told us that its school inspection framework refers to sexual harassment, but that specific information about levels of sexual harassment and about how a school protected employees would only be sought “if it came up”, which it rarely does. Ofsted inspectors do, however, have mandatory training on safeguarding which includes a section on sexual harassment, and an inspection would take place sooner than planned if complaints were made by staff or pupils about sexual harassment.89

59.Megan Butler of the Financial Conduct Authority told us that regulatory attention was a “key incentive” for focusing the financial services industry on sexual harassment.90 The certification regime for senior managers that is being rolled out across the industry holds leaders responsible for the cultural values of their businesses, and for determining whether key staff are ‘fit and proper’ for their roles. The ‘fit and proper’ test does not explicitly require a history of sexual harassment issues to be considered,91 but it

encompasses the whole of that individual. We do not believe that a culture that tolerates sexual harassment and other forms of behavioural misconduct will encourage a ‘safe to speak up’ environment, an environment where the best business decisions get taken and where the best risk decisions get taken. So […] we expect firms to take all of those aspects into account when they look at whether their key individuals are fit and proper to do their roles.92

Nonetheless, Ms Butler estimated that, out of around 1,500 whistleblowing complaints made to the FCA over the last couple of years, only “nine or so” related to sexual harassment, which perhaps suggests that its interest in this area is not widely recognised.93 The FCA has not, to date, taken enforcement action against a firm for failing to prevent sexual harassment.

60.Regulators are uniquely placed to oversee employer action to protect workers from sexual harassment. This is a health and safety issue, and several regulators have responsibility for overseeing this aspect of employers’ activities. The Health and Safety Executive in particular must take up its share of the burden of holding employers to account if they fail to take reasonable steps to protect workers from sexual harassment. This could include issuing guidance on the actions that employers could take, including undertaking specific risk assessments, and investigating reports of particularly poor practice.

61.Regulators who do not take steps to address sexual harssment in their sectors are failing in their Public Sector Equality Duty. 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.

62.Regulators must make it clear that sexual harassment by regulated persons is a breach of regulatory requirements by the individual and their organisation, that such breaches must be reported to the appropriate regulator, and that such breaches must be taken into account when considering the fitness and propriety (or equivalent) of regulated individuals and their employers. Perpetration of or failure to address sexual harassment in the workplace must be recognised as grounds for failing a ‘fit and proper person’ test or having professional credentials removed. Regulators should also set out the sanctions for perpetrators of sexual harassment in their sectors. The victim themselves, however, should not be under any obligation to report, nor should they face sanctions for failing to report to their regulator.


78 Equality and Human Rights Commission, Essential Guide for English public bodies, July 2014

82 Health and Safety Executive, Work-related violence, accessed on 9 July 2018

83 Equal Opportunities Commission, Annual Report and Accounts 2006–7, July 2007

88 Solicitors Regulation Authority (SHW0021)




Published: 25 July 2018