According to a BBC survey in November 2017, a startling 40% of British women, and 18% of British men stated that they had experienced unwanted sexual behaviour in the workplace.
Sexual harassment in the workplace is, and has been, at the forefront of our attention for a number of months following the rise of the #MeToo movement and the ‘Time’s Up’ campaign. More recently, this has been further added to by the report produced by the ‘Women and Equalities Commission’, which contained the following recommendations:
- there should be a mandatory duty on employers to protect employees from sexual harassment in the workplace, enforceable by the Equality and Human Rights Commission (EHRC) and punishable by fines;
- a duty for public sector employers to conduct risk assessment for sexual harassment, and take steps to mitigate any risks;
- reintroducing third party harassment, so that employers are liable if they have failed to take reasonable steps to prevent others harassing their staff;
- extending sexual harassment protection to interns and volunteers;
- extension of the time limit for bringing a claim of sexual harassment to six months, with the clock being paused while any internal grievance process is ongoing;
- enabling tribunals to award punitive damages in sexual harassment cases, thereby creating a presumption of costs, so that employers will ordinarily have to pay the employee’s legal costs if it loses a sexual harassment case;
- limiting the ability to use confidentiality clauses in settlement agreements to ‘government approved’ standard clauses; and
- making it a professional disciplinary offence for lawyers (and, in certain circumstances, also a criminal offence for the employer and the lawyer) to propose the use of a non-approved confidentiality clause.
At present, there is seemingly little incentive for employers to implement robust action to tackle the issue of sexual harassment despite the effects sometimes having a devastating effect on the victims, their employees.
The report highlights this lack of action, or protection, the fact that the burden of holding harassers and employers to account rests heavily on the individual and that many victims are reluctant to take forward a complaint for a variety of reasons, including the fear of victimisation, or because they cannot trust their employer to take the required robust action.
These factors could explain why the number of tribunal cases revolving around sexual harassment appear to be so low. The report states that the tribunal system must be an effective remedy for employees, and the threat of tribunal must be sufficient to ensure to motivate employers to have proper systems in place to tackle and prevent sexual harassment, although the threat of a tribunal claim alone should not be the reason to tackle sexual harassment in the workplace. It also suggests that better data is required so that the extent of harassment and effectiveness of remedies can be more easily measured.
The report states that 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 acknowledging that NDAs have a place in settling complaints of sexual harassment, it claims there is insufficient monitoring and regulation of their use; and that 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. It states that those parties using NDAs unethically in this way must face strong and appropriate sanctions.
For some, sexual harassment is an ambiguous concept and is often considered to amount to the perception of one person against another. However, harassment does have a clear legal definition which provides that it occurs where:
- one employee engages in unwanted conduct of a sexual nature with another employee; and
- this conduct has the purpose or effect of either violating the victim’s dignity, or creating an intimidating, hostile or degrading environment.
Unwanted conduct is considered to be any unwanted verbal, non-verbal or physical conduct of a sexual nature such as unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.
Conduct can still be unwanted even if the employee has put up with it for years, and even if the employee initiated “banter” as a coping strategy.
Harassment of any nature can be difficult to handle. Addressing harassment should not be a reactive measure. Employers are best advised to create an environment that does not allow for harassment in the first place.
One of the points raised in the report is that there should be a mandatory duty on employers to protect employees from sexual harassment in the workplace. This can be achieved by setting clear standards on what constitutes unacceptable behaviour. These standards should be set by senior management so as to ensure that more junior staff follow suit.
As mentioned, sexual harassment in the workplace is often considered to be a matter of perception, and often referred to as a generational issue. This is never going to be an acceptable defence and employers would do well to consider the recommendations in the report and what they can do to promote a culture where sexual harassment in the workplace is simply not an option.
Garry Humphreys, HR Consultant at EML, states…
“Chair of the Women and Equalities Committee, Maria Miller, states ‘The burden falls unacceptably on the individual to hold harassers and employers to account when they will already hesitate to do so due to fear of victimisation’. Although her report stops short of recommending that the burden of proof in sexual harassment cases be reversed, that’s the implication…and it’s something I can’t see working in practice. Currently, a claimant has to prove facts from which, in the absence of an adequate explanation, a tribunal can conclude that discrimination has taken place. If unable to do so, the claim fails. If, however, such a prima facie case is established, the burden of proof shifts to the respondent and if it can’t prove that discrimination hasn’t occurred, a finding in the claimant’s favour follows. This would appear to be logical as the onus surely has to be on the individual to make a case that the employer is then forced to defend in order for the tribunal to assess. Change this for one strand of discrimination and you’d have to change it for the rest.”
For further guidance on sexual harassment in the workplace, please refer to our series of myth busters, the first of which can be found here. We will also be publishing a series of FAQs in this area imminently.
At Employee Management Ltd, our HR support consultants provide commercially minded employment law advice and bespoke HR services that can actively reduce your organisation’s exposure to litigation. We also offer a comprehensive employment tribunal representation service through which we can handle any claims you do receive. If you’re an employer faced with a complaint from an employee that you fear could eventually lead to litigation, please contact us for a confidential, no-obligation discussion.