21 June 2018

Turning the tables: ending sexual harassment at work

The President’s Club scandal and Harvey Weinstein have put sexual harassment at the top of the agenda. Now, the European Human Rights Commission (EHRC) has released a report that sets out a list of recommendations for government and employers. These recommendations are aimed at better protecting people at work.

For those who may not know, the EHRC was established by Parliament under the Equality Act 2006 to help safeguard and enforce the laws that protect all our rights to fairness, dignity and respect.

The EHRC wanted to discover how sexual harassment is dealt with by employers, and to draw on the insights of individuals who have experienced sexual harassment at work.

The report shares evidence gathered from around 1,000 individuals and employers between December 2017 and February 2018 and reveals some shocking findings on the approach taken by employers to sexual harassment in the workplace.

Eliminate sexual harassment

Based on the evidence, the EHRC is calling on the government and employers to implement its recommendations to eliminate sexual harassment in every British workplace through:

  • transforming workplace cultures with employers taking more responsibility for preventing harassment;
  • promoting transparency about incidents of harassment and the policies in place to prevent them; and
  • new laws to strengthen legal protection for harassment victims.

The full report can be accessed via the link below:

https://equalityhumanrights.com/sites/default/files/ending-sexual-harassment-at-work.pdf

Recommendations

There are a number of recommendations made in the report. In more detail, the key recommendations are as follows:

Changing culture

  • A mandatory duty on employers to take reasonable steps to protect workers from harassment and victimisation in the workplace, breach of which should constitute an unlawful act.
  • A statutory code of practice specifying the steps that employers should take to respond to sexual harassment with employment tribunal discretion to increase compensation by up to 25% where the code is not followed.
  • ACAS should develop targeted sexual harassment training for managers, staff and workplace sexual harassment ‘champions’.
  • An online tool for facilitating the reporting of sexual harassment at work.

Promoting transparency

  • The government should collect, report and publish data on the prevalence and nature of sexual harassment at work every three years.
  • Employers should publish their sexual harassment policy and the steps taken to implement and evaluate it.
  • The government should introduce legislation making any contractual clause which prevents the disclosure of future acts of discrimination, harassment or victimisation void.
  • Safeguards should be introduced to restrict the use of confidentiality clauses to prevent the disclosure of past acts of discrimination, harassment or victimisation.

Strengthening protection

  • An extension of the limitation periods for bringing a claim of sexual harassment in an Employment Tribunal to six months from the latest of:
    • the act of harassment;
    • the last in a series of incidents of harassment; or
    • the exhaustion of any internal complaints procedure.
  • Interim relief protections for harassment and victimisation claims, similar to that for protected disclosure dismissals.
  • Restore the power of Employment Tribunals to make recommendations aimed at reducing the adverse effects of discrimination.
  • Re-introduce a statutory questionnaire procedure in employment-related discrimination and harassment claims.
  • Re-instate the protection from third-party harassment but without the requirement to show to previous incidents of harassment.

How does this affect schools?

This report from the EHRC was actually in development before the President’s Club scandal and Weinstein. It is, however, very topical and some of its recommendations, especially around harassment by third parties, are very timely.

For now, it remains in the hands of the government as to whether to take any of the recommendations forward. As we know, with Brexit making a daily appearance in the news, the government’s plate is rather full at the moment, so we shall see if the recommendations will be taken further.

Since the issue remains topical, this could lead to an increase in claims for sexual harassment, which would have an adverse impact on a school’s reputation.

There are steps that schools can take to mitigate against this risk, and many of the recommendations in the report represent good employer practice. Accordingly, schools should consider taking the following steps:

  • Make it easier for individuals to report harassment – the report states that employers should have several avenues, both formal and informal for individuals to report harassment. The report references technology that can be used to make reporting easier.
  • Have regular diversity training for staff.
  • Ensure equality and diversity polices are adhered to. We have just introduced a new policy into the ISBA Staff Handbook on anti-bullying and harassment. A copy of the Staff Handbook can be located in the ISBA Library.
  • Create a workplace culture that engenders equality.
  • Ensure that all current and potential employees are aware of their commitment to preventing sexual harassment at work. Include agency workers in this as well as atypical workers.
  • Ensure those who do report harassment are protected from victimisation.

Equality and diversity are hot topics at the moment. When or if the government considers the result of the EHRC report, schools that have implemented the above steps are likely to be in a better position to implement any changes to the law. In the meantime, we must hope that the wider toxic culture in some sectors that has prompted the President’s Club scandal and Weinstein becomes a thing of the past.

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About the Author
Hannah Wilding, Solicitor
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