Since the #MeToo movement gained momentum in late 2017, many individuals have felt emboldened to come forward and report incidents of unwanted sexual behaviour at work. It is increasingly common for HR managers to be grappling with difficult issues in this area.
Allegations of sexual harassment not only cause significant reputational damage for employers but also expose them to potentially expensive litigation. In addition, the Government has recently announced proposals to enhance the law in this area which are likely to affect all businesses.
It is therefore important for HR managers to understand how to minimise the risks of harassment occurring in the workplace and what steps to take when such allegations are made. During June 2018, Taylor Walton will be running a series of free workshops which focus on this area. To book your place, please contact firstname.lastname@example.org or call 01582 390568.
What is Sexual Harassment in the Workplace?
The current position is that employees are protected from sexual harassment under the Equality Act 2010. Sexual harassment occurs where a person engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. Unwanted behaviour does not necessarily need to be directed at the person raising concerns. Witnessing or overhearing certain types of behaviour may be sufficient.
Who is Liable?
An employer will be vicariously liable for any acts of harassment committed by its employees against other employees which occur in the course of employment. The position in relation to harassment by a third party (for example, a contractor) is less clear but may still lead to claims by the employee. However, an employer may avoid liability if it can successfully argue that it has taken all reasonable steps to prevent the harassment from occurring.
Preventing Allegations with Reasonable Steps
In practice, the reasonable steps defence is a difficult one to establish successfully as the threshold is high. Acting reasonably to any allegations of discrimination will not be enough to successfully plead this defence. At present, the employer must have taken steps to prevent the harassment occurring in the first place which includes having appropriate policies, procedures and training in place.
In the future, it is likely that employers will be expected to make more effort to protect their staff from harassment. In response to the Women and Equalities Select Committee report on sexual harassment in the workplace, the Government has announced plans to strengthen protections relating to sexual harassment at work. Victoria Atkins, the Government's minister for women stated, “we are taking action to make sure employers know what they have to do to protect their staff, and people know their rights at work and what action to take if they feel intimidated or humiliated. Everyone has the right to feel safe at work.”
The Government proposals consist of 12 broad action points. In particular, the EHRC will develop a statutory code of practice to help employers understand and demonstrate that they have taken reasonable steps to prevent harassment and a consultation was launched to consider whether a mandatory duty to protect workers from sexual harassment should be implemented.
Furthermore, the maximum limit for aggravated breach of employment legislation, including current laws on harassment has increased to £20,000 and the EHRC is also to be added to the list of prescribed persons for whistleblowing purposes.
The Government also intends to consult on various matters including how best to strengthen protections in relation to third party harassment, whether new protections are necessary to protect interns and volunteers and whether to extend tribunal time limits from three months to six months.
Non-Disclosure Agreements (NDA)
A separate consultation has been launched in relation to the use of non-disclosure agreements where sexual harassment has been alleged. The Government is keen to ensure that employees who enter into an NDA fully understand their rights and that the NDA is not used to prevent an employee from reporting incidents of sexual misconduct to the police. Given the wide spread use of NDA’s is employment contracts and settlement agreements, these proposals will have a significant impact on many businesses.
The Government confirmed a number of other commitments including working with ACAS, the EHRC and employers to raise awareness of appropriate workplace behaviours and engaging with regulators such as the HSE and the Solicitors Regulation Authority to ensure they are taking appropriate action to address issues relating to workplace harassment in an effective manner.
Whilst the new proposals do not make any immediate, significant changes to the law, it is clear that the Government wishes to ensure that tackling sexual harassment in the workplace is a priority for all businesses. We look forward to seeing you at our upcoming workshops to explore how businesses can ensure that they are better protected in this complex area.
If you have any questions on this topic or any employment law related questions regarding your business, please feel free to contact Heather Cowley on email@example.com or call 01582 731161.