In the wake of recent sexual harassment scandals and #MeToo, the EHRC has published its findings on a survey of those affected by sexual harassment in the workplace.
There were 750 respondents, three quarters of whom had experienced harassment personally. while the remainder had witnessed harassment or supported the victims of harassment. The EHRC’s report “Turning the Tables – Ending Sexual Harassment at Work” refers to “toxic workplace cultures” where fears of victimisation are rife. It calls on the Government to implement a series of recommendations which are designed to transform “corrosive cultures”, promote greater transparency and strengthen legal protections.
The EHRC reports that most of those harassed were women and that the most common perpetrator was a senior colleague. However, around one quarter of respondents had experienced harassment by clients or service users. According to the survey, this type of complaint was particularly poorly supported.
Barriers to reporting included a perception that complaints would not be taken seriously and/or that there would be victimisation. Male complainants were particularly concerned that their complaints would be dismissed. When harassment was reported, in around half of cases no action was taken. Complainants also found that their experience was minimised and that the onus was put on them to modify their behaviour by “staying out of the way of the perpetrator”. They feared career damage and disciplinary action including dismissal.
Recommendations for cultural change – Mandatory duty, Statutory Code and ACAS Training
Employers will be vicariously liable where they fail to take reasonable steps to protect their workforce from harassment. The EHRC wishes to go further and recommends that employers should be subject to a mandatory duty to take reasonable steps, the breach of which would be an unlawful act and the subject of enforcement action by the EHRC under its statutory powers.
This duty would be underpinned by a Statutory Code of Practice (the Code) on sexual harassment and harassment at work which would specify the steps that employers should take to prevent and respond to sexual harassment. Non-compliance would be evidence of breach of the mandatory duty. The EHRC recommends that Employment Tribunals should have the power to increase compensation by 25% for failure to comply with the Code.
The EHRC does not detail the content of the Code. However, in the body of its report, it refers to the importance of having a specific policy on sexual harassment, providing proper training on the policy, objective investigation of complaints and protection from victimisation. A further recommendation suggests that ACAS should develop sexual harassment training for managers, staff and workplace harassment champions to achieve the requirements of the Code.
The EHRC had also sought responses from large employers as part of its survey to assess current practices and found that while most employers had a policy, sexual harassment was often included within a broader diversity or inclusion policy or addressed briefly. Two thirds of the employers that responded to the EHRC’s enquiries had trained line managers on the policy but only half had trained other staff. Only two fifths of the employers shared information about their policies as part of an employee induction. Very few employers provided information about how they prevented harassment by clients/service-users.
However, the most significant omission in the employer responses concerned the monitoring of sexual harassment complaints to guard against victimisation. Less than one third of the employers provided evidence of how they assessed the success of their policies against sexual harassment.
The EHRC expects employers to monitor the effectiveness of such arrangements through staff surveys. They also cited positive examples of employers who set the right tone by having senior stakeholders emphasise the importance of reporting sexual harassment and tracking the reward/progression of complainants to ensure that they are not penalised for reporting harassment.
Anonymous reporting of complaints via online tools or third party agencies
Another EHRC recommendation is that the Government should develop an online reporting tool to facilitate anonymous reporting at work. The report offers the possibility of anonymous reporting to encourage complainants to come forward. It refers to an initiative in the USA called the Callisto Project where victims of sexual harassment at Universities can report online securely on the understanding that if the same perpetrator is named by multiple victims a counsellor will contact them individually to discuss reporting options. The knowledge that there have been a series of reports in respect of one individual may encourage people to report.
Employers may already offer anonymous reporting to the extent that sexual harassment complaints could constitute a “protected disclosure” for whistleblowing purposes, provided that the individual reasonably believes that there has been a criminal offence or a breach of a legal obligation and that the disclosure is made in the public interest. However, anonymous reporting should not be the preferred channel because it limits the level of investigation that can be carried out and creates the potential for unfairness for those who are named in an anonymous harassment complaint.
Our view is that employees should be encouraged to go on record so that their complaint can be investigated fully and the employer can monitor their situation in order to ensure that there is no victimisation. This involves instilling confidence in the sexual harassment policy and creating an environment in which victimisation is outlawed. The examples of employers who provide access to counselling or “dignity advisers” and who have a statement of support from senior staff to accompany the policies would assist in achieving that level of confidence. Another EHRC recommendation that an employer’s policies and supporting processes should be published on the employer’s website and that the policy should be communicated to agency staff would also feed into that cultural shift.
The EHRC recommends that any non-disclosure agreement that seeks to prevent disclosure of future acts of discrimination, harassment and victimisation should be void and that non-disclosure agreements should not be used pre-emptively (in advance of an event). Where a non-disclosure agreement is included as part of a settlement with a departing employee, it is unlikely to have been effective to settle claims that have not crystallised. There are some cases which suggest that sufficiently clear and precise language could be used to identify prospective claims and compromise them (particularly in relation to COT3 agreements) but there are no authorities where such an approach has been effective.
The EHRC acknowledges that the position regarding the use of non-disclosure agreements in respect of past acts is an area that requires more guidance and recommends that the Code should set out where such agreements are void and best practice where they are permissible. Under the current law, such agreements would be void to the extent that they purported to prevent (i) protected disclosures under section 43A of the Employment Rights Act 1996 (which could sexual harassment complaints), (ii) reporting complaints to the police or law enforcement agencies and/or (iii) co-operating with any criminal or regulatory investigations or proceedings. However, as the recent Women and Equalities Parliamentary Select Committee debate on non-disclosure agreements revealed, individuals signing those agreements may not appreciate the extent to which such disclosures are permissible.
More recently, the Solicitors Regulation Authority has issued a Warning Notice on the improper use of non-disclosure agreements (you can read our full report on this here). We recommend that settlement agreements are explicit about the impact of such clauses and that the carve-outs are clear (particularly where the employee is unrepresented). Employers should also check that the carve-outs dovetail with any repayment provision that requires repayment in the event of breach of confidentiality. Such repayment provisions may have a deterrent effect on reporting if their scope is unclear.
The EHRC gives examples of what would be best practice in relation to non-disclosure agreements such as payment of the employee’s legal costs, allowing employees time to consider the agreements, only using confidentiality agreements at the employee’s requests, save in exceptional circumstances and annexing a statement to the agreement to explain what is included and the effect of the non-disclosure agreement.
It is fairly usual for an employer to make a contribution to the employee’s legal costs and for the employee to have time to consider the agreements (as settlement agreements (other than COT3 agreements) have to be signed off by a lawyer). The need for clarity in relation to the scope and effect of the non-disclosure agreement would also be desirable for both parties and to ensure that it does not interfere with any criminal, regulatory or legal process and/or the whistleblowing regime.
However, the suggestion that those agreements should only be used at the employee’s request implies that a finding of harassment has been made. In our experience, such agreements are used where there is a dispute as to whether or not harassment has occurred. The employee receives a payment as part of a commercial settlement and without admission of liability. The prospect of including such clauses only at the request of an employee is therefore unlikely to be workable in practice.
The other protections proposed by the EHRC would strengthen significantly the sexual harassment protection in the Equality Act 2010. The EHRC recommends that the time limit for filing of complaints is extended to 6 months (rather than three months) and that interim relief (continuation of employment until determination of the case) should be available. They also suggest that statutory questionnaires and the power to make recommendations for the benefit of the wider workforce in discrimination complaints should be re-introduced.
With regard to third party harassment, the EHRC calls upon the Government to reinstate the provisions in the Equality Act 2010 which outlawed third party harassment but modified to remove the requirement for an employer to have knowledge of two or more instances before they were liable. Under the current law the extent of an employer’s liability for third party harassment is unclear, with employees having to argue that inaction in the face of such behaviour is a form of sexual harassment under section 26 of the Equality Act 2010.
The Government is also encouraged to collect and report on data regarding sexual harassment complaints every three years to test the effectiveness of measures designed to prevent harassment.
Next steps for employers
Even if the Government does not adopt all the EHRC recommendations, the report coupled with the recent Parliamentary debate on non-disclosure agreements indicates that sexual harassment complaints have renewed focus and that employers must strengthen their efforts to create an environment in which such complaints can be reported and investigated properly. It may be an opportune moment for a senior member of staff to issue communications reiterating an existing commitment to outlawing harassment and for training to be given to staff at different levels of the organisation.
Employers should also review their induction arrangements to make sure that new joiners know the reporting mechanisms that apply. Contracts with third parties should also be checked to ensure that the commitment to anti-harassment measures is shared. Finally, settlement agreements containing non-disclosure provisions should be checked to ensure that they contain the legally required carve-outs and that their effect is clear. By taking these steps employers will be equipped to deal with forthcoming reforms and will minimise the risk of reputational damage and expensive claims.