Employers should have legal duty to prevent sexual harassment

The Equality and Human Rights Commission (EHRC) has recommended that the Government places a legal duty on employers to take effective steps to prevent sexual harassment, and suggested an increase in the level of compensation for victims where this duty has been breached.

The recommendations, made in the EHRC’s Turning the tables: ending sexual harassment at work report, aim to promote greater transparency and strengthen legal protections for victims of sexual harassment in the workplace.

It said there should be a mandatory duty for employers to take reasonable steps to protect workers from harassment and victimisation by both employed staff and third parties such as customers or suppliers.

To do this, the Government should develop a statutory code of practice for employers to follow, specifying the steps they should take to prevent and respond to harassment allegations.

It said a breach of this duty should be considered unlawful under the Equality Act, which would be enforceable by the EHRC, and employment tribunals would be given the power to apply an uplift in compensation for victims by up to 25% if it is breached.

Rebecca Hilsenrath, chief executive of the EHRC, said: “Corrosive cultures have silenced individuals and sexual harassment has been normalised.

“We need urgent action to turn the tables in British workplaces; shifting from the current culture of people risking their jobs and health in order to report harassment, to placing the onus on employers to prevent and resolve it.”

The report also called on the Government to ban employers from using non-disclosure agreements (NDAs) to protect their reputation in sexual harassment cases, and recommended that NDAs should only be used at the request of the victim.

Sam Smethers, chief executive of the Fawcett Society, said victims should be encouraged to come forward and employers should “genuinely listen to them when they do”, instead of “preventing them speaking out or hoping money will make the problem go away”.

The EHRC, which gathered evidence from around 1,000 individuals and employers, claimed employers took no action in around half of cases where a victim alleged that they had been harassed.

Senior colleagues were found to be the most common perpetrators, but almost a quarter of individuals said they had been harassed by customers or clients.

Unfortunately there are still a few employers who are unwilling to investigate harassment and would rather throw money at the situation,” – Aron Pope, Fox Williams

In February the Solicitors Regulation Authority (SRA) circulated a warning against the use of NDAs in harassment cases. It renewed its caution this month, stating that they should not be used to prevent people from reporting wrongdoing.

Paul Philip, SRA CEO, said: “The public and the profession expects solicitors to act with integrity and uphold the rule of law. And most do. NDAs have a valid use, but not for covering up serious misconduct and in some cases potential crimes.”

Instead of using NDAs to suppress employees from talking about incidents of harassment, employers should focus their efforts on implementing proper reporting procedures and carefully investigate claims, suggested Aron Pope, partner at Fox Williams.

He explained: “It needs to be a top-down initiative, with emphasis from the most senior management that harassment is unacceptable… Employers don’t often place enough emphasis on training.”

He said that while improper use of NDAs is being discouraged, he noted that they still have their place when used at an appropriate time, such as when the incident has been thoroughly investigated.

“Unfortunately there are still a few employers who are unwilling to investigate harassment and would rather throw money at the situation,” Pope added.

The EHRC’s report also recommended that:

  • data from England, Scotland and Wales is collected every three years to determine the prevalence of sexual harassment and develop an action plan;
  • the Government extends the length of time an employee can bring a harassment claim to an employment tribunal to six months;
  • Acas develops targeted sexual harassment training for managers, staff and workplace sexual harassment “champions”;
  • employers publish their sexual harassment policy on their websites so current and potential employees are clear on what is being done to address the issue, and;
  • the Government develops an online tool to make harassment reporting easier.

An inquiry into workplace sexual harassment was launched by the Women and Equalities Committee earlier this year. It hoped to determine what actions employers and the Government could take to change workplace culture and encourage victims to come forward.

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