By Andrew Knorpel, Partner and Head of the Employment team
Over the last nine months, allegations of sexual harassment have had substantial media coverage.
A ComRes survey for the BBC in November 2017 found that 40% of women have experienced some form of sexual harassment in the workplace and many of us will know someone who has suffered in this way.
Parliament’s Women and Equalities Commission has now published its report on Sexual Harassment in the Workplace and has made recommendations on how the law may be strengthened to provide even greater protection for those on the receiving end of “unwanted conduct of a sexual nature” which has the purpose or effect of violating dignity or “creating an intimidating, hostile, degrading, humiliating or offensive environment” (as defined in the Equality Act 2010).
Making safety and dignity at work a legal corporate responsibility on the same level as issues such as preventing money-laundering and protecting personal data, enforceable by the Equality and Human Rights Commission and carrying substantial financial penalties.
A requirement for public sector employers to conduct risk assessments for sexual harassment in the workplace and to put in place an action plan to mitigate those risks.
Protection from sexual harassment to be extended to all workers, interns and volunteers, regardless of the identity of the harasser, and for employers to be held liable for failure to take reasonable steps to protect staff from third party harassment, regardless of whether there were previous occurrences of third party harassment.
Employers must not only set out clearly within their organisation the kind of behaviours that are unacceptable, but also raise awareness to change the culture that enables sexual harassment to go on unchallenged.
The Government should introduce a statutory code of practice on sexual harassment and give Tribunals the discretion to apply an uplift to compensation of up to 25% where the code is breached.
If an employer loses a case of sexual harassment, Tribunals should be able to award punitive damages and employers should normally be required to pay the employees’ costs.
The time limit for bringing a tribunal claim for sexual harassment should be extended from three to six months, with a pause while the employer’s grievance procedure is completed.
The previously abolished power of a Tribunal to make recommendations relating to an employer’s wider workforce in discrimination cases should be re-introduced.
Standard approved confidentiality clauses for settlement agreements should be introduced and it should be 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 (see our previous article on this issue).