Sexual harassment in the workplace Contents

Conclusions and recommendations

Put sexual harassment at the top of the agenda

1.Providing a workplace where employees have safety and dignity is no less important than other corporate responsibilities such as preventing money-laundering and protecting personal data. We call on the Government to establish a regime that ensures that it will be just as important to employers. (Paragraph 27)

2.We agree with the Equality and Human Rights Commission (EHRC) that the burden of holding perpetrators and employers to account on workplace sexual harassment is too great to be shouldered by individuals alone. Employers must have greater and clearer responsibilities for protecting workers from sexual harassment. (Paragraph 31)

3.We support the recommendation of the Equality and Human Rights Commission that the Government should place a mandatory duty on employers to protect workers from harassment and victimisation in the workplace. Breach of the duty should be an unlawful act enforceable by the Commission and carrying substantial financial penalties. The duty should be supported by a statutory code of practice on sexual harassment and harassment at work which sets out what employers need to do to meet the duty. (Paragraph 32)

4.The public sector should be leading the way on tackling and preventing sexual harassment, setting good practice examples that other employers can follow. We urge the Government to ensure that all public sector organisations take immediate action to protect workers from sexual harassment. (Paragraph 33)

5.In the interim period before the mandatory duty is in place, the Government should direct public service employers to take immediate action to tackle and prevent sexual harassment in the workplace, including setting out unacceptable behaviours, how cases will be handled and the penalties for perpetrators. (Paragraph 34)

6.The Government should introduce a specific duty under the Public Sector Equality Duty requiring relevant public employers to conduct risk assessments for sexual harassment in the workplace and to put in place an action plan to mitigate those risks. Action plans should set out how cases will be investigated and include guidance on penalties for perpetrators. (Paragraph 35)

7.Everyone in the workplace should be protected from sexual harassment, regardless of whether they have a contract of employment or similar contract for services or who the harasser is. (Paragraph 43)

8.If the judgment in Unite the Union v Nailard stands, the Government should bring forward legislation to place a positive duty on employers expressly to protect workers from harassment by third parties and to ensure that employers can be held liable for failure to take reasonable steps to protect staff from third party harassment. This must not be restricted to cases where there were previous occurrences of third party harassment. (Paragraph 44)

9.The Government should extend the protections relating to harassment in the Equality Act 2010 to interns and volunteers so that they are entitled to the same protections as the wide range of individuals in the workplace who are already protected. (Paragraph 45)

10.All workers are entitled to a safe working environment, free from sexual harassment. It is incumbent on the Government, the Equality and Human Rights Commission and employers to make clear to all those in the workplace, including clients, customers and volunteers that all workers are entitled to be treated with respect. Employers must take responsibility for setting out within their organisation the kind of behaviours that are unacceptable and what might constitute sexual harassment or a sexual offence. However, there is also a need for wider, large-scale awareness-raising work to change the culture that enables sexual harassment to go on unchallenged. (Paragraph 49)

11.The Government should work with Acas, the Equality and Human Rights Commission and employers on an awareness-raising campaign. This should include information on: the behaviours that might constitute sexual harassment; employers’ responsibility to protect workers from sexual harassment and victimisation; actions that workers can take if they are sexually harassed; how employers should help workers to challenge inappropriate behaviours; enforcement processes including tribunals; whistleblowing laws; and legal and ethical use of confidentiality clauses in settlement agreements. (Paragraph 50)

Require regulators to take a more active role

12.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. (Paragraph 60)

13.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. (Paragraph 61)

14.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. (Paragraph 62)

Make enforcement processes work better for employees

15.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. (Paragraph 68)

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

17.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. (Paragraph 84)

18.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. (Paragraph 85)

19.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. (Paragraph 91)

20.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. (Paragraph 92)

21.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. (Paragraph 97)

22.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. (Paragraph 101)

23.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. (Paragraph 105)

Clean up the use of non-disclosure agreements (NDAs)

24.The use of non-disclosure agreements (NDAs) must be better controlled and regulated to ensure that they are not used unethically in cases where sexual harassment is alleged. It is vital that employees have access to information about the responsible and legal use of confidentiality clauses and that lawyers are held to account for using or attempting to use such clauses in an unethical way. We are encouraged that the SRA has issued guidance on reporting sexual harassment and the use of NDAs in sexual harassment cases and hope that the Bar Standards Board and the Bar Council also issue guidance. However, the regulators must also demonstrate that members of the legal profession will face serious sanctions if they sexually harass clients or colleagues or if they misuse NDAs to silence victims of sexual harassment. (Paragraph 130)

25.The Government should legislate to require the use of standard, approved confidentiality clauses. These should include clear, plain English wording setting out the meaning, effect and limits of confidentiality clauses, including a clear explanation of what disclosures are protected under whistleblowing laws and cannot be prohibited or restricted. (Paragraph 131)

26.The definition of protected disclosures and prescribed persons under whistleblowing legislation should be widened to include disclosures of sexual harassment to the police and all regulators, including the Equality and Human Rights Commission and Health and Safety Executive, and to any court or tribunal. (Paragraph 132)

27.The Government should make it an offence for an employer or their professional adviser to propose a confidentiality clause designed or intended to prevent or limit the making of a protected disclosure or disclosure of a criminal offence. (Paragraph 133)

28.Use of provisions in confidentiality agreements that can reasonably be regarded as potentially unenforceable should be clearly understood to be a professional disciplinary offence for lawyers advising on such agreements. (Paragraph 134)

Collect robust data

29.It is crucial, if we are to gauge the effect of actions being taken now to stamp out sexual harassment in the workplace, that robust and comparable data is collected at regular intervals (Paragraph 139)

30.The Government should collect data on the number of tribunal claims submitted involving allegations of harassment of a sexual nature and the outcome of such claims. As tribunal data alone tells only a small part of the story, the Government should commission large-scale surveys at least every three years to determine the prevalence and nature of sexual harassment in the workplace. The findings of each edition of the survey should be accompanied by an evaluation of measures taken in the preceding period to tackle sexual harassment, and an action plan responding to the findings.(Paragraph 140)

Published: 25 July 2018