The Women and Equalities Committee (a cross party parliamentary committee) has published its report on Sexual Harassment in the Workplace.
In 2017 allegations about sexual harassment in the entertainment industry sparked the #MeToo movement and put sexual harassment in the workplace firmly into the media spotlight uncovering how widespread and common the problem is. As the news cycle moves on there is the risk that the Government and business enthusiasm to tackle the issue wanes and the report is intended to be a "call to action" that will maintain a focus on the issue.
The report acknowledges men and women can both be victims of sexual harassment and perpetrators and some of the evidence received by the committee drew links between sexual harassment and other manifestations of gender inequality in the workplace including both the gender pay gap and under representation of women in leadership roles.
The recommendations set out in the report include:-
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 Equality and Human Rights 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.
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.
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. 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.
The Government should work with ACAS, the Equality and Human Rights Commission and employers on an awareness-raising campaign.
- The Government should improve the remedies that can be ordered by employment tribunals and the costs regime to reduce barriers 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.
- 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 complaints and grievance procedures are completed. This should be done as part of a wider review of the time limit in all discrimination cases.
- 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.
- The Government should consider reintroducing tribunals’ powers to make wider recommendations to employers in discrimination cases.
- 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.
- 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.
- 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. Additionally, the 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.
- 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.
It remains to be seen how many of these recommendations the Government will take forward.