Sexual harassment in the workplace Contents

3Make enforcement processes work better for employees

Summary

63.There is a lack of appropriate support for victims of sexual harassment in the workplace, and the systems that should help those who want to take forward a complaint are not working well enough. So, not only do victims bear the burden of holding harassers and employers to account, with all the risk that that entails, but they are hindered in doing this by poor employer practices and a tribunal system that does not meet their needs. The tribunal system must be an effective remedy for employees, and the threat of tribunal must be an incentive for employers to ensure they have proper systems in place to prevent sexual harassment and deal with such behaviour appropriately, including through proper investigation of allegations.

Employers’ policies and procedures: the need for a code of practice

64.We have already made the case, in Chapter 1, for a mandatory duty on employers to take action to protect workers from harassment and for a statutory code of practice to support them in doing this. Evidence that we received from individuals about the effect of poor employer policies and practices show why it is important to ensure that robust, fair and effective systems are in place. Even where policies and practices are in place, these are unlikely to be effective if they are not supported by action to uphold the law, training and culture change.

Box 4: How employers respond to complaints of sexual harassment: individuals’ experiences

“I was told ‘I am just jealous, I want more hours, and to shut up and get on with it.’ I spoke out against them, I got suspended, and I left on the same day, so I could continue to speak out against them.”

“I talked to my boss about the issue, who told me to stay away from the individual concerned and block any calls. I was moved to another project. I asked about reporting the man’s actions to his company, but was told that it was my word against his, that he would certainly deny it, that it might damage the relationship between the two companies or put the contract—multi-million and several years duration—at risk.”

“When I complained informally I was ignored. When I raised a formal grievance the behaviour of my employer became extremely hostile. […] My employer had a lengthy grievance procedure that looked impressive on paper, but the reality was that the aim was not to listen and learn from complaints but to protect the employer.”

“The issue was not investigated other than asking the Senior Director if he had done it, then the company officially branding me a liar when the Senior Director denied it, […] making the continuance of my role untenable.”

“My confidentiality was not respected. The details of my complaint were disclosed in its entirety to him. The policy was that I had to be advised if this was going to happen and that I had protection as a whistleblower. Instead I was subject to ostracisation, intimidation and bullying.”

Written evidence from members of the public94

“Sexual harassment / assault was supposedly forbidden in their code of conduct. When the incident was reported their only concern was their reputation, and they wanted to make sure I would not speak out or sue them.”

Individual’s story from submission by NGO Safe Space95

“My GP and local rape crisis centre have been tremendously supportive… My employer has been abysmal. The knowledge, support and professionalism of rape crisis services has been lifesaving.”

Individual’s story from submission by EHRC96

“It took me filing a complaint against him with the police and a letter of concern to my HR manager for my employer to actually do something about his advances and prevent him speaking to me, and even then they changed my shift and disrupted my life. Not his.”

Individual’s story from submission by 38 Degrees97

65.Sue Coe, Principal for Work and Employment at the EHRC, told us that their survey of employers showed that one in six employers had done nothing to ensure that people making a complaint of sexual harassment were not victimised. Those who said they had taken action were often only able to point to a policy as evidence: “It was words on a policy rather than rounded practice that brought it to life.”98 Kathryn Nawrockyi, consultant and campaigner on gender inequality, bullying, harassment and sexual misconduct, also highlighted the importance of backing up policy with “a bigger programme of culture change and internal campaigning within an organisation.”99 Yvonne Traynor of Rape Crisis agreed that it was important to have an “active policy”.100

66.One reason that employers may not be taking actions to protect workers from sexual harassment is that they are unsure what they should do. This may be indicated by how rarely employers defending claims try to set out the steps they have taken to prevent harassment. Joanna Blackburn, partner at Mischon de Reya, told us

There is an opportunity for employers to be able to avoid liability for discriminatory acts if they can show that they have taken all reasonable steps to prevent the wrong that has been done. I had a straw poll with various colleagues in my firm and others. We have never used it and seen it used. Why is that? Ordinarily, if there is a defence on a piece of legislation, you would see that being picked up and used. It is because lawyers feel uncertain that they can advise their clients that they have done all things that were reasonable to stop the discriminatory act, and it is employers feeling that they do not know what they are supposed to be able to do.101

A code of practice would help give employers the advice and direction they need about the steps they should be taking.102

67.It is essential that employers have suitable policies, systems and practices in place to prevent sexual harassment and to ensure that reports of such behaviour are dealt with appropriately. However, these will work only if they are supported and championed by leaders and if managers and workers receive specific and relevant training and support. The code of practice should set out the actions that employers should be taking in all these areas to meet the new duty. We highlight below some of the main elements that should be in the statutory code of practice.

68.We support the EHRC’s recommendation that the Government should introduce a statutory code of practice on sexual harassment in support of the mandatory duty. This code would specify the steps that employers should take to prevent and respond to sexual harassment, and which can be considered in evidence when determining whether the duty has been breached. Tribunals should have the discretion to apply an uplift to compensation of up to 25 per cent in harassment claims where there has been a breach of mandatory elements of the statutory code.

Specific guidance that the code of practice should include

Reporting procedures, including access to anonymous reporting

69.Most sexual harassment in the workplace is never reported.103 Reasons for under-reporting include the victim’s fear of being blamed for the incident or of experiencing retaliation for reporting, and a fear of negative consequences for their job, career or relationships at work.104 Victims may not want to re-live distressing events, may feel embarrassed, and may doubt that what they have experienced was serious enough to report or happened at all.105 Close the Gap told us that, because sexual harassment happens to many women many times in their lives, it becomes “so normalised or minimised that women are resigned to their experiences not being taken seriously, and so they do not report”.106 The Centre for Gender and Violence Research stated:

[V]ictims who have bravely spoken out (often at considerable personal and professional risk) have found their claims dismissed or undermined or minimised. They have often seen no action taken, and this drives a further cycle of silence, especially when other victims can observe that speaking out achieves nothing and come to have little trust in the system.107

70.For some women, leaving their job is a more rational response than making a complaint. Yvonne Traynor of Rape Crisis told us that “the women that complain about sexual harassment want it to stop. In their minds, the way for it to stop is to leave that organisation.”108 She reflected on the evidence Rape Crisis had gathered on under-reporting and employer handling of complaints:

women tend to take responsibility for themselves and feel that maybe there was something that they did for it to happen, and they feel ashamed and do not want anyone to know about what happened. It is really hard for women to come forward and talk about it. […] organisations are not good at dealing with it. Women are seen as a bit of a problem. They are complainers, they are holding grievances and are bringing the organisation into disrepute because there are not enough robust systems to help them to complain about what is going on.109

71.Other witnesses also highlighted the importance of good employer handling of complaints to counter the current lack of confidence in reporting procedures among victims. Some described how victims lose confidence when they see other cases being mishandled or dismissed or met with hostility, intimidation or further victimisation.110 One HR professional who submitted evidence stated:

There is frequently a stronger drive to maintain the status quo than to deal with the harassing behaviour. Reporters of harassment can be seen as troublemakers or liars, and all too often find themselves unemployed after reporting these incidents.111

72.The ‘Justice’ Project at the Centre for Gender and Violence Resarch has looked at why sexual abuse and sexual harassment cases need to be handled with particular care. The project found that victims want to be listened to, to have the harm they have suffered be recognised, to see the perpetrator held accountable instead of being further victimised themselves, and to have choice, control and voice in the process.112 A code could encompass best practice guidance, informed by specialists, about how to achieve this.

73.The EHRC and others have suggested that anonymous and confidential reporting might help to improve employer practice and employee confidence.113 Danny Hardie, a welfare officer, suggested that “having an independent support line, or advocacy service would be a good first step” towards achieving those aims, adding:

Victims often fear being ridiculed, belittled or seen as trouble making for raising the issue. To have a confidential, independent service to talk with and be supported by would be a good way to help victims minimize shame and stand up for themselves.114

Neil Carberry of the CBI told us that some employers were already implementing anonymous hotlines, in partnership with external organisations, as a first step to reporting.115 Elizabeth Prochaska, Legal Director at the EHRC acknowledged that there were could be data protection issues to consider with anonymous reporting, but that “it is being done in other jurisdictions and it is being done increasingly here”.116

Investigating allegations, including when a settlement agreement is reached

74.The way that allegations of sexual harassment are investigated by employers is central to showing that they are serious about stamping out sexual harassment in the organisation. We are concerned that some allegations of sexual harassment are being ‘dealt with’ using settlement payments and agreements that prevent the employee from speaking about the alleged behaviour, without those allegations ever being investigated and without any sanctions for perpetrators. We discuss the use of such agreements, known as non-disclosure agreements, in more detail in Chapter 4.

75.If allegations are not investigated or even spoken about, this can lead to repeat offending by the same perpetrator and reinforces a culture in which such behaviour is seen as normal or acceptable. In the worst cases, offending can be an open secret within an organisation or more widely, with perpetrators being seen as untouchable. Kathryn Nawroycki described how organisations can close ranks to protect senior managers when they are accused of sexual harassment:

Quite often, harassment is perpetrated by a senior person to a more junior person. It is very difficult to challenge up the hierarchy in an organisation. […] It is very typical that organisations will close ranks and protect their more powerful, senior people, even if they know they have crossed a line. It does not take long for that to become very common knowledge amongst employees: that, quite frankly, the organisation would rather keep them there being successful, earning money and doing whatever else, and make that slightly awkward, complaining, more junior person over there go away.117

76.The evidence we have received indicates areas of serious weakness and poor practice in employers’ handling of sexual harassment in the workplace. The aim of a code of practice should be to show employers what they need to do and to help them understand what a comprehensive and appropriate response looks like.

77.The code of practice to support the mandatory duty should set out good practice guidance on matters including:

The tribunal system

78.Given the high proportion of workers who have experienced sexual harassment, there is a surprisingly low number of successful employment tribunal claims for harassment of a sexual nature. Government data on tribunal claims is not detailed enough to provide figures specifically on claims alleging sexual harassment, but the EHRC has estimated that in the past year only eight such claims were successful at hearing, with a further six being unsuccessful and four being withdrawn or settled.118 This does not include cases that may have been settled at Acas conciliation. However, we have no reason to believe that a large number of such cases are settled at that stage.

79.Employment lawyers told us that the tribunal system is off-putting to victims of sexual harassment in the workplace,119 and this was supported by the evidence we received from some individuals.120 Taking a case to tribunal may exacerbate the victimisation of the claimant in their workplace.121 Michael Reed, Principal Legal Officer at the Free Representation Unit (FRU) outlined some of the reasons why people are put off making a claim through the tribunal system:

people are often still in the workplace when this happens and face difficult choices. You may go to a lawyer who will tell you, ‘This is unlawful. You can bring a case in the Employment Tribunal’ but immediately you are going to think, ‘How is that going to affect my career? How is that going to affect my progression?’ or in other areas of the economy and in other jobs, ‘Am I still going to have a job next week if that is what I do?’122

Legal costs

80.Employment lawyers told us that legal costs are a significant barrier to bringing a case to tribunal. Gareth Brahams, the then Chair of the Employment Lawyers Association, described people having to spend “huge sums of money”,123 and Joanna Blackburn, Partner at Mischon de Reya, told us that “cost and inequality of arms” was the greatest barrier to bringing forward a case, adding:

but that is true of all legal cases involving individual versus corporate, or the vast majority. Normally the employer outguns the employee in terms of resource. That is an inherent issue in the system and one that I am afraid you are not going to be able to solve because we are not going to have legal aid for employment cases again. Even that does not really assist, because the thresholds were so low for legal aid and the reality is that the costs of bringing tribunal claims are significant.124

81.Suzanne McKie QC, and Francesca West of whistleblower charity Public Concern at Work, described how claimants were sometimes threatened with being pursued for the employer’s legal costs as well as their own in order to encourage settlement.125 Francesca West stated:

I have seen such heavy-handed tactics in relation to a last-ditch effort trying to scare someone off their claim by throwing enormous, not really supportable, cost threats at the door of the tribunal to say, ‘You had better drop that claim or we will be pursuing you for £100,000 worth of costs’.126

82.It is expensive to secure legal representation, but it is very difficult to win a claim without it.127 Trying to take a forward an employment tribunal case without legal representation is a daunting prospect, as described by Michael Reed of the Free Representation Unit:

Asking people to run a sexual harassment case, when they are challenging evidence, assembling evidence, making legal argument, when in many cases they have no training to do that and they may not have the educational background or the language skills, they can be vulnerable in all sorts of ways that makes that incredibly daunting. They are often entering a very alien, very intimidating environment.128

Low compensation awards

83.The high cost of bringing an employment tribunal claim is not matched by the potential for high compensation awards; indeed, successful claimants may not even be awarded enough to cover their costs. Compensation is calculated to cover financial losses arising from the harassment and a sum for injury to feelings. Awards for injury to feelings are unlikely to exceed £43,000, and in most cases will be much lower than that, with the lowest awards at around £800.129 If there is no financial loss—for example when the claimant remains in their job while claiming—then the injury to feelings sum would be the only compensation payable. Karon Monaghan QC of Matrix Chambers and employment lawyer Clare Murray agreed that low awards were a disincentive to going to tribunal and that punitive awards might help to counter that effect.130 Clare Murray compared the low awards available in the UK to the punitive damages available in the equivalent process in the US, and argued that increasing potential penalties would focus employers’ minds:

It is about having the sort of sanction and potential remedy that not only will encourage victims to feel there is a meaningful remedy and not so much risk if they bring a claim in terms of costs—and we should address costs risks as well—but, equally, will capture the attention of employers.131

84.If the cost risks of going to tribunal outweigh the likely benefit for the majority of potential claimants then the system cannot be working properly. Moreover, the lowest-paid workers are least likely to be able to take forward a case even though high levels of sexual harassment occur in low pay sectors such as retail, hospitality and services, and among workers in temporary or casual work. Employees who have a strong case against their employer must not be priced out of justice. There must be a threat of strong sanctions to encourage employers to take appropriate action.

85.The Government should improve the remedies that can be awarded by employment tribunals and the costs regime to reduce disincentives to taking a case forward. Tribunals should be able to award punitive damages and there should be a presumption that tribunals will normally require employers to pay employees’ costs if the employer loses a discrimination case in which sexual harassment has been alleged.

Time limits

Box 5: Tribunal time limits: an individual’s experience

“I didn’t know about [employment tribunals] and I would never have been able to contemplate pursuing this within the short timeframe. I was in no way able to write down let alone speak about what had happened so immediately afterwards.”

Written evidence from a member of the public132

86.Harassment claims must be made to the employment tribunal within three months of the act of harassment complained of, or the last in a series of acts if the claimant can show that there is a continuing act, where discrimination extends over a period of time, as with a campaign of harassment. This time limit is automatically extended when there is early conciliation conducted by Acas, but there is no automatic extension to allow time for employer’s internal complaint procedures to be completed. This places an additional pressure on the potential claimant to decide whether to submit a claim when they may be engaged in a potentially difficult and stressful internal grievance procedure. This will necessarily mean either paying for legal advice on whether to pursue a tribunal claim or attempting to navigate the system without legal advice. Michael Reed of the Free Representation Unit told us that employment tribunal time limits are “bizarrely short compared with all the other areas of the civil justice system”, with “time limits measured in years” for personal injury and breach of contract claims in the courts. He went on:

In employment you have three months, which is not a lot of time in practice where something has happened and you are absorbing the blow of that, you are thinking about what to do, you are talking to other people and then you may be trying to get advice. You are trying to fund advice. You are trying to get an appointment with the Citizens Advice Bureau or something like that. That whole process can take weeks or months. It is not that people can step out of the incident and walk around to their lawyer and say, ‘I need some advice and can we think about putting a claim in?’ Of course, people are trying to resolve these things very often in the workplace, as they should do, rather than immediately going to the tribunal.133

87.The CBI suggested that the limit could be paused to allow time for grievance procedures to run their course:

employment tribunal rules can force a claimant to choose between seeking to resolve their issue in the workplace and their ability to access the employment tribunal as a backstop. Time limits within which a worker must submit a sexual harassment claim to tribunal are a sensible step to protect the interests of workers and businesses. But the rule does not serve the interests of either party if the progress towards an amicable resolution is disrupted by a claim being submitted to tribunal earlier than either party would have wanted. Flexibility to pause this time limit while both parties complete a workplace grievance process—like the rules ensuring that participating in Acas Early Conciliation never causes your right to bring a claim to tribunal to expire—should be an option that exists.134

Such a pause mechanism would be an improvement on the current arrangements, but it would not help those who no longer work for that employer. Nor would it help those who do not report their harassment straight away, as is common with all types of sexual offences. The limit is therefore likely to have a disproportionate impact, as barrister Aileen McColgan told us, “when it is applied to people who have been subject to sexual harassment and psychologically damaged, as is often the case”.135

88.The EHRC has recommended that the limitation period for harassment claims in an employment tribunal should be amended to six 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. Victims need more time to take decisions. Employment lawyers, legal experts and others agreed that the three-month time limit was too short and should be extended.136 However, employment lawyer Joanna Blackburn warned that having separate limits for harassment claims compared with other discrimination claims would be confusing and might lead to other claimants missing shorter deadlines, adding that consistency was important for both employers and employees. Aileen McColgan and Michael Reed agreed that time limits should be extended for all discrimination claims.137

89.Our predecessor Committee also looked at tribunal time limits in its report on pregnancy and maternity discrimination. In its recommendations it supported a Justice Committee recommendation that the Government review the three-month time limit for bringing a claim in maternity and pregnancy discrimination cases, suggesting that six months would be a more suitable time limit.138 The Government suggested in its response that there was insufficient evidence of a need to extend the time limit. It noted that tribunals had “a broad power to extend the time in which a case can be heard, where it is just and equitable to do so”. The Government also stated that it would “consider what further guidance can be provided to parties about the existing flexibilities, in order to clarify the position and respond to the concerns raised to the committee” and that it would keep the matter under review.139

90.In July 2018, the Parliamentary Under-Secretary at the Ministry of Justice, Lucy Frazer QC MP, told us that the Government had been collecting data which showed that in 2017 an extension of the time limit was granted in 21 pregnancy and maternity cases, with none being refused.140 However, she also noted that judges might have been treating extension requests more leniently in that time because of suggestions that claims may have been delayed by concerns about tribunal fees. While these figures are useful in showing how judges are exercising their discretion, they do not help to uncover how many potential claimants have been put off making a claim altogether by the time limit, which is still a significant barrier. Elizabeth Prochaska, Legal Director at the EHRC, explained why the EHRC was recommending an extension to the time limit rather than seeking to raise awareness about the potential extension:

There are two things there. One is that we as an organisation and you as parliamentarians cannot dictate a judge’s discretion. That will always depend on the facts of the case so there is always uncertainty about what factors will be taken into account in discretion. The second point to make is that, as a legal advisor giving someone advice on whether or not to bring a harassment claim—or indeed a pregnancy or maternity discrimination claim—you would have to advise your client that if they had missed the three-month deadline there was a significant risk that their claim would be struck out. That is yet another obstacle to people deciding to take the claim. No competent legal advisor would say, ‘I am confident the discretion will be exercised in your favour,’ because you can never be confident about the exercise of a judicial discretion.141

91.We agree with the Equality and Human Rights Commission, employment law experts and business representatives that the three-month time limit for harassment claims is not long enough to allow employers and employees to pursue alternative means of resolving cases. This places an unnecessary pressure on potential claimants to submit a claim before they know whether they want to go to tribunal. It also hinders alternative approaches to resolution by requiring parties to consider early conciliation and to prepare for a tribunal hearing while internal grievance procedures may be ongoing. Requiring victims of sexual harassment to gamble on judicial discretion is unfair and constitutes another barrier to making a claim.

92.The Government should extend the time limit for lodging a tribunal claim in cases of sexual harassment to six months and pause the countdown until employers’ internal complaint and grievance procedures are completed. This should be done as part of a wider review of the time limit in all discrimination cases.

Protections for victims and claimants

93.We are concerned that victims making claims within the tribunal system do not necessarily have access to the significant protections and specialisms available in the criminal justice system for complainants of sexual offences. This is despite the fact that many forms of sexual harassment constitute criminal offences, including sexual offences.142 The protections and specialisms available in the criminal justice system include: lifelong anonymity for those alleging sexual offences;143 specialist support through the Independent Sexual Violence Adviser (ISVA) scheme;144 specially-trained police and prosecutors in many areas;145 a prohibition on the defendant cross-examining the complainant in court and a range of special measures in court such as screens and video link evidence;146 and specially-trained, ‘ticketed’ judges to hear cases involving the most serious crimes. In addition, good data is available at every stage of the criminal justice system—for example, on prevalence of specific offences, police reports, prosecutions and trial outcomes. This data has demonstrated high numbers of cases falling out of the system and has helped with the development of policy responses.

94.Employment lawyer Andrew Taggart told us that he had seen some of these protections used, although not in sexual harassment cases, and agreed that consideration could be given to making them more widely available:

If there is evidence that suggests that these sorts of cases are not being brought, absolutely there should be a review done as to whether the employment tribunal system should be modified, so that individuals can give evidence, for example, on a televised screen. That happens already. I have been involved in a case, not for sexual harassment, but where an individual gave evidence over a screen. Sometimes you come up against the principles of open justice, but I do not see why the employment tribunal system cannot look at new ways of allowing individuals to pursue their claims.147

95.Legal experts told us that orders restricting the reporting of the name of an individual involved in a case can be granted by tribunals.148 Joanna Blackburn told us that she had never known a tribunal not to grant a restricted reporting order in a case where they are bringing a claim of sexual harassment”.149 However, such orders last only until the tribunal judgment, whereas section 1 of the Sexual Offences (Amendment) Act 1992 gives complainants of sexual offences a right to lifelong anonymity. Andrew Taggart suggested that anonymous reporting could be granted more widely in discrimination cases:

If someone does not want to go through the trauma of giving evidence about how they were harassed on sexual orientation grounds, pregnancy grounds, race, religion or belief grounds, then it is right that courts should look at ways in which they can pursue those claims through a method that does not expose them to even more trauma.150

96.We recognise that there are differences between tribunals and the criminal courts and that not all protections could be available in the same way. Nevertheless, the state still has obligations to ensure that victims’ rights are protected under the Human Rights Act 1998 as well as under international obligations.151

97.Employment tribunal claimants alleging sexual harassment that could constitute a sexual offence should have access to similar protections to those available to complainants in sexual offence cases in the criminal justice system. The Government should take immediate steps to close the gap in protection for complainants of sexual harassment and sexual violence in an employment context compared with complainants of sexual offences in a criminal justice context, regardless of whether they make a complaint to the police. This includes: lifelong anonymity; access to special measures in an employment tribunal, including not being cross-examined by the alleged perpetrator; and regular specialist training on sexual harassment for tribunal judges hearing these cases.

Information gathering and the statutory questionnaire

98.A worker who is considering whether to bring an employment tribunal claim for sexual harassment might not have access to information that could support their claims, such as whether similar allegations have been made about the alleged perpetrator. When the Equality Act 2010 was originally enacted it provided a mechanism under section 138 for requesting this information using a statutory questionnaire. If there was no response to the questionnaire within eight weeks, or the responses provided were evasive, an employment tribunal could draw an inference of discrimination against the employer if there was other evidence of unlawful discrimination in the case.

99.Section 138 was repealed in 2013 following a Government consultation. The Government argued that the statutory questionnaire provisions had not increased settlements or reduced tribunal loads, but had created new burdens and risks for employers, and that repeal would encourage settlement of claims.152 It also noted that there was little quantifiable evidence about the use or effect of the procedure. Workers who believe that they have been discriminated against still have the right to make a protected request for information under the Equality Act 2010. A tribunal may look at whether and how a responder has answered questions as a contributory factor in making its decision on a discrimination claim, but it cannot draw an inference of discrimination on that basis.153 This procedure is thought to be little used, perhaps because of this apparent lack of teeth, with a lack of repercussions for an employer who fails to respond.154

100.There was substantial support in the evidence we received for reintroducing the statutory questionnaire procedure, for example on the basis that it levelled the playing field between employees and employers by making information available allowing a claimant to establish the strength of their case.155 We also heard that the process had been onerous for employers, especially if it was thought to be being used as what the CBI called “a fishing exercise”.156 The Equality and Human Rights Commission recommended that an amended process could be arrived at through consultation, to ensure that it was effective and proportionate.157 YESS Law suggested that a specific questionnaire could be drafted for cases where sexual harassment was alleged, removing the possibility that employees or their lawyers would ask lots of irrelevant questions that contributed to the burden on employers.158

101.Access to information is an important tool for employees, and transparency is vital in ensuring that employers are held to account. Any procedure must, however, be proportionate, and there should be safeguards for employers against pernicious or careless use that elicits too much irrelevant information. A more tailored version of the statutory questionnaire, which previously enabled employees to request information about a potential discrimination claim, could achieve this. The Government should introduce a statutory questionnaire, consulting on whether standardised questions specifically for claims in which sexual harassment is alleged could be developed.

Power to make wider recommendations

102.Another provision from the original 2010 Act that was later repealed was the power under section 124(3)(b) for employment tribunals, when an employee won a discrimination case, to make recommendations to the employer about their practices and policies. The recommendations themselves were not enforceable, but if the employer failed to comply, a tribunal could take that failure into account in a future case of a similar nature.

103.The provision was repealed in 2015, with the Government stating that such powers were unnecessary, unenforceable and that little specific evidence had been advanced for the effectiveness of the measures. It suggested that requiring tribunals to go beyond the case in question to matters which affect a business more generally would mean the tribunal “taking on the role of an equality consultant”. The Government also stated that it knew of only one case where an employment tribunal had used the power.

104.Arguments for reinstatement advanced during our inquiry included that wider recommendations have the potential to bring benefit to a whole workforce, not just an individual claimant, through improved workplace practices.159 The National Education Union stated that, in the absence of such recommendations, employers would opt to “take the hit” of losing one tribunal case while avoiding looking at their structures or procedures.160

105.A toxic organisational culture or poor management practices have the potential to make sexual harassment, along with other types of workplace discrimination, more prevalent. The ability of tribunals to make wider recommendations that draw on the lessons of individual cases to encourage a joined-up organisational response could have an important part to play in tackling these factors as part of a scheme of wider changes. The Government should consider reintroducing tribunals’ powers to make wider recommendations to employers in discrimination cases.


94 A member of the public (SHW0078); A member of the public (SHW0079); A member of the public (SHW0012); A member of the public (SHW0015); A member of the public (SHW0009)

95 NGO Safe Space (SHW0038)

96 Equality and Human Rights Commission (SHW0069)

97 38 Degrees (SHW0025)

103 TUC (SHW0031); Dr Julia Shaw, Rashid Minhas and Camilla Elphick (SHW0037); The Everyday Sexism Project (SHW0051); BBC Radio 5 Live – Sexual harassment in the workplace 2017, survey by ComRes, October 2017

104 Close the Gap (SHW0040); National Union of Journalists (SHW0029); Dr Julia Shaw, Rashid Minhas and Camilla Elphick (SHW0037)

105 Dr Sandra Fielden (SHW0068); Mr Danny Hardie (SHW0002)

106 Close the Gap (SHW0040)

107 Centre for Gender and Violence Research, University of Bristol (SHW0089)

110 Close the Gap (SHW0040); Dr Julia Shaw, Rashid Minhas and Camilla Elphick (SHW0037)

111 A member of the public (SHW0015)

112 Centre for Gender and Violence Research, University of Bristol (SHW0089)

114 Mr Danny Hardie (SHW0002)

118 Equality and Human Rights Commission (SHW0091)

119 Q166 [Gareth Brahams]; Q176; Q481 [Aileen McColgan, Michael Reed]; Q507 [Joanna Blackburn]

120 A member of the public (SHW0012); Anonymous (SHW0013); A member of the public (SHW0046)

122 Q481 [Aileen McColgan, Michael Reed]

130 Q16; Oral evidence taken on 13 June 2018, HC 701, Q125

132 A member of the public (SHW0043)

134 CBI (SHW0064)

136 Q484; Q26 [Clare Murray, Christine Payne]

138 Women and Equalities Committee, First Report of Session 2016–17, Pregnancy and maternity discrimination, HC 90

142 Oral evidence taken on 13 June 2018, HC 701, Q120

143 Sexual Offences (Amendment) Act 1992, section 1

145 Metropolitan Police, What happens after you report rape or sexual assault?, accessed 18 July 2018

146 Crown Prosecution Service, Special measures: legal guidance, accessed 18 July 2018

148 Q507; Q234; Oral evidence taken on 13 June 2018, HC 701, Qq122–3

154 CM Murray LLP (SHW0019)

155 Q521; Q6; Q26; Q35; CM Murray LLP (SHW0019); Unite the union (SHW0035); Ms Roseanne Russell (SHW0011); National Education Union (NEU) (SHW0022); TUC (SHW0031); The Everyday Sexism Project (SHW0051)

156 CBI (SHW0064); EEF (SHW0048); Q26

157 Equality and Human Rights Commission (SHW0057)

158 YESS Law (SHW0049)

159 Chartered Institute of Personnel and Development (SHW0033); TUC (SHW0031); YESS Law (SHW0049); Unite the union (SHW0035); Equality and Human Rights Commission (SHW0057); Ms Roseanne Russell (SHW0011); The Fawcett Society (SHW0030)

160 National Education Union (NEU) (SHW0022)




Published: 25 July 2018