Ending sexual harassment at work – EHRC recommendations

UPDATE: In July 2021, the Government published its response to the 2019 consultation on workplace sexual harassment. It will introduce a new duty for employers to prevent sexual harassment and re-introduce the concept of third-party harassment in the workplace. It will also look closely at the possibility of extending the three months’ time limit for workplace harassment and discrimination claims under the Equality Act 2010 to six months. The new duty will be introduced “as soon as Parliamentary time allows”. There is no further information as yet.

In addition, the Government will discuss scope for further strategic enforcement action by the Equality and Human Rights Commission (EHRC) and support the EHRC to develop a new statutory Code of Practice. It is expected that guidance for employers will be produced to complement the Code of Practice.

Extensive guidance on sexual harassment has been published over the past few months by ACAS, the Equality and Human Rights Commission (EHRC) and the TUC to help employers understand their obligations under the Equality Act 2010 and what to do if a complaint is made.

At the time of publishing its guidance in December 2017, the EHRC wanted to find out how sexual harassment is dealt with by employers and to find out more from individuals who have experienced sexual harassment at work. Between December 2017 and February 2018 it wrote to a number of large employers to find out what safeguards they have in place to prevent sexual harassment. It also asked individuals to complete a survey on sexual harassment. The EHRC gathered evidence from 1,000 employers and individuals and on 27 March 2018 published its report Turning the tables – Ending sexual harassment at work.

According to the EHRC, “corrosive working cultures have silenced the voices of victims and normalised sexual harassment” and the report includes a number of recommendations to better protect people at work.

The most common complaint by respondents to the EHRC survey was harassment by a senior colleague but a quarter of respondents, many in the hospitality sector, were harassed at work by a third party. About half of respondents had not reported the harassment and the barriers for reporting were concerns that the organisation did not take the issue seriously, a belief that alleged perpetrators, particularly senior staff, would be protected, fear of victimisation, and a lack of appropriate reporting procedures.

Regarding the organisations’ responses, most of them had harassment policies but some of these made little reference to sexual harassment and fewer than a third of them evaluated the effectiveness of their policy.

EHRC recommendations

The EHRC recommended:

• A change in workplace culture with employers taking more responsibility for preventing harassment.
• Greater transparency about incidents of harassment and the policies in place to prevent them.
• New laws to strengthen protection for harassment victims.

Change in workplace culture

There should be:

• A new mandatory duty for employers to take reasonable steps to protect workers from harassment and victimisation in the workplace (as opposed to the current duty of care).
• A statutory Code of Practice requiring all employers to take effective steps to prevent and respond to sexual harassment with an uplift of up to 25% of Employment Tribunal awards for breach of the Code.
• ACAS should develop targeted sexual harassment training for managers, staff and workplace sexual harassment champions to support employers comply with the Code.
• A confidential online tool for employees to report instances of sexual harassment.

Greater transparency

• Data should be collected by the Government every three years to determine the prevalence and nature of sexual harassment with the data broken down by protected characteristics and the measures taken to tackle the problem since previous reports.
• Employers should publish their sexual harassment policies and steps taken to implement and evaluate it in an easily accessible part of their external website.
• The Government should introduce legislation to make any contractual clauses which prevent disclosure of future acts of discrimination, harassment and victimisation void.
• The Code of Practice should set out the circumstances in which confidentiality clauses preventing disclosure of past acts of harassment will be void.
• Regarding confidentiality clauses in settlement agreements, they should only be used at the employee’s request save in exceptional circumstances.

Strengthening protection

• Increasing the time limit for harassment claims to six months from the latest date of the act of harassment, or the last in a series of incidents or the end of any internal grievance procedure to bring a claim.
• Introduce interim relief provisions for harassment and victimisation claims for those dismissed following a sexual harassment allegation and application to be made within one month from the act of harassment or the last in a series of acts of harassment.
• Reintroduce an amended version of the statutory questionnaire procedure for sexual harassment cases and of Employment Tribunals’ power to make wider recommendations in sexual harassment cases.
• Restoration of the repealed third party harassment provisions in section 40 of the Equality Act 2010 but amended to remove the requirement for there to have been two or more instances of harassment.

It is important to remember that employers are liable for their employees’ acts of harassment which take place during the course of employment (including conduct at work social events) whether or not the actions were done with the employer’s approval or knowledge (“vicarious liability”). Under section 109 of the Equality Act 2010, employers can defend a claim for harassment if they can demonstrate they have taken all reasonable steps to prevent the employee from carrying out the acts. To succeed, employers would need to show that they proactively took steps to prevent sexual harassment; this will involve having effective policies and procedures in place, providing training where required, and responding appropriately to complaints.

We don’t have any information yet about the Government’s response to the EHRC’s recommendations but it is likely that sexual harassment will continue to be a high profile issue in the months ahead. Accordingly, employers should ensure that they take a zero-tolerance approach to sexual harassment and have in place clear reporting channels for raising concerns.