The issue of sexual harassment in the workplace was one that was repeatedly highlighted in 2017 and a report by the EHRC has now thrown light on how common the problem is and how employers are failing to take consistent and effective action to deal with it.
The report, entitled Turning the tables: ending sexual harassment at work, shares evidence about sexual harassment gathered from around 1,000 individuals and employers between December 2017 and February 2018. The report describes what was found as a "shocking and stark reality of individuals whose careers and mental and physical health have been damaged by corrosive cultures which silence individuals and normalise harassment".
Not surprisingly the vast majority of those who reported having been sexually harassed were women. The most common perpetrator was a senior colleague, however just under a quarter of respondents said they were harassed by customers, clients or service users.
A primary problem with dealing with harassment was a reluctance to report it in the first place. Victims were concerned about being victimised, thought that their employers would not take the issue seriously and in some cases believed that the perpetrators would be protected.
The conclusion drawn from the report is that employers are not doing enough to protect workers from sexual harassment. The EHRC believe a change in workplace culture, greater transparency about incidents and new laws to strengthen protection for victims are required. They make a number of specific recommendations to achieve that:-
- a mandatory duty should be introduced requiring employers to take reasonable steps to protect workers from harassment and victimisation in the workplace, with a breach of that duty constituting an unlawful act for the purposes of the Equality Act 2006 which would be enforceable by the EHRC;
- the introduction of a statutory code of practice on sexual harassment and harassment at work, specifying the steps an employer should take to prevent and respond to harassment. This would then be considered when assessing whether an employer has breached the mandatory duty;
- Employment tribunals should be given the power to apply an uplift to compensation in harassment claims of up to 25% for breach of the mandatory code;
- ACAS should develop targeted sexual harassment training for managers and staff;
- An online tool which addresses barriers to reporting and facilitates the reporting of incidents should be developed by the UK Government;
- Data should be collected every 3 years from across the country to determine the prevalence and nature of sexual harassment at work. This data should be reported and measures taken to tackle the problem evaluation with an action plan being published following each report;
- Employers should publish sexual harassment policies and the steps taken to implement and evaluate it on their external website;
- Employers should also ensure that their policy addresses obligations to workers supplied by third parties, ensuring it is shared with organisations supplying workers;
- Legislation should be introduced making any contractual clause preventing disclosure of acts of discrimination, harassment or victimisation void;
- The period for making a claim of harassment to an employment tribunal should be extended to 6 months, and if the claim is out of time the burden of proof should shift to the respondent to establish why time should not be extended;
- Interim relief for those dismissed by their employer for making a complaint (by way of continuation of their employment pending the outcome of their claim) should be introduced for harassment and victimisation claims;
- Legislative provisions relating to third party harassment under the Equality Act 2010, statutory questionnaires and the tribunals power to make recommendations aimed at reducing the adverse effects of discrimination on the wider workforce should be reintroduced.
Employers need not wait to see if any of these recommendations are implemented. Reviewing policies and ensuring that they are both fit for purpose and easily available to employees is something that can be done now. Educating managers and employees on what sexual harassment is and how to deal with it is also an important part of the process and another step that employers can ensure they have in place at this stage. Although the EHRC were critical in their report of the current "reasonable steps" defence available to employers - describing it as an inadequate means of protecting workers and not encouraging best practice - progressing these matters now is still a way for employers to protect their businesses from liability should a claim be made.