Bold proposals for a big problem
In October 2017, reports began to surface about widespread sexual harassment in the entertainment industry. The voices of women in the industry alleging abuse were joined by others from all walks of life, and #MeToo exploded. It was clear that the problem was not able to be overlooked or supressed any longer.
In February 2018, the Women and Equalities Committee of the House of Commons launched an enquiry into sexual harassment in the workplace, designed to harness the momentum of the #MeToo campaign and to produce some practical proposals to address the problem. The committee invited written evidence from the public, and interviewed more than 35 witnesses with expertise in the area, including Joanna Blackburn, a partner at Mishcon de Reya. Today (25 July 2018), it published its report.
The report describes itself as "a call to action". It does not make for comfortable reading. It notes that 40% of women and 18% of men have experienced unwanted sexual behaviour in the workplace. Those most at risk are women, and particularly women with precarious employment arrangements, such as those with irregular hours, and freelancers.
The report concludes that employers and regulators "have ignored their responsibilities for too long". While rules which tightly regulate money laundering and data protection have been implemented, the issue of protecting workers from unwanted sexual conduct has been ignored.
The committee notes that as well as being bad for the health and wellbeing of those directly affected, stifling development and contribution, it also affects morale and staff retention more widely.
The report contains a number of proposals for radical and far reaching reforms, designed to combat the "widespread and commonplace" problem of sexual harassment. The proposals fall under five main headings:
Putting sexual harassment at the top of the agenda
The report believes that senior leaders in organisations are simply unaware of the extent to which workers in their organisations are subject to sexual harassment. Some 12% of women have experienced some form of sexual harassment in their workplace in the last three years. And yet little seems to be being done to counter this. Only around 40% of employers appear to include sexual harassment training as part of their induction processes, and all too often display only 'paper based compliance' – in other words, the only mention of sexual harassment will be tucked away in a policy.
The committee sought views as to whether the burden of ensuring that businesses should comply with the law should be down to individuals, or if further duties should be imposed on employers to ensure that they complied with their obligations. The Equality and Human Rights Commission (EHRC) advocated for being given the power to take action against employers who had failed to put measures in place designed to prevent harassment – in other words, to tackle the problem 'upstream', before an individual even had cause to make a complaint.
Some disagreed with this approach. Joanna Blackburn, a partner at Mishcon de Reya, suggested in her evidence to the committee that rather than imposing further regulatory burdens on employers, the government could help by assisting with the implementation of existing laws and giving guidance to employers as to what compliance and best practice looks like.
However, the report concludes that there is a need to bolster protections by way of a mandatory duty to protect workers. It considers that a breach of this duty should lead to penalties, and this would be enforceable by the EHRC. The duty would be supported by a statutory code of practice, so employers would have a clearer idea of what was expected of them. The committee also recommends that a new duty should be introduced under the Public Sector Equality Duty, together with action plans that set out how public bodies should investigate allegations and how they should set penalties for perpetrators.
Third party harassment was once covered by the Equality Act 2010 – protecting workers who were harassed in the course of their employment by people who are not co-workers employed by the same employer. If the harassment had occurred on two previous occasions, and the employer had done nothing to prevent it from recurring, they would be entitled to bring a claim against their employer if it happened a third time. These provisions were repealed following a consultation in 2012. The government believed at the time that other provisions of the Equality Act could be used to provide protection. However, in May 2018, the Court of Appeal held that the other provisions in the Equality Act were significantly more limited in their scope than the government had previously thought. As a consequence of this case, the report urges the government to pass new legislation reintroducing protections against third party harassment and removing the so-called 'three strikes' criterion. It also asks that protections be extended to cover interns and volunteers, who may otherwise find themselves vulnerable.
This part of the report concludes with a recommendation that the government works with ACAS, the EHRC and employers on an awareness raising campaign to change expectations about behaviour.
Putting pressure on regulators
The report is scathing in its assessment of the extent to which regulators have failed to take sufficient responsibility for eradicating sexual harassment from the workplace. In particular, the Health & Safety Executive (HSE) is sharply criticised for not doing enough, and for not even believing that prevention of sexual harassment falls into its remit. Other bodies, including the Financial Conduct Authority, Solicitors Regulation Authority, and even the EHRC, do not escape censure.
The committee points to the Public Sector Equality Duty and says that it considers that regulators, as public bodies, need to do more to comply with this duty.
The report suggests that employers should do more to improve their policies and procedures. As Joanna Blackburn pointed out when giving evidence to the committee, most employers "do not know what they are supposed to be able to do" in order to take advantage of the statutory defence available to employers who can show that they have taken all reasonable steps to prevent harassment from occurring. As such, the committee has recommended that the code of practice goes into detail as to what employers need to think about in order to comply with the proposed new statutory duty. This includes putting in place reporting procedures (including by way of anonymous helplines) that encourage workers to break the "cycle of silence" – where people are reluctant to come forward as they do not think that anything will be done, or where they fear repercussions - and investigating allegations even where a settlement agreement is reached. The code will also include guidance on how to support victims, and how to conduct investigations in a way that will not prejudice potential criminal investigations.
The report also looks at whether the Employment Tribunal system could be improved. It notes that the EHRC estimates that of the eighteen claims of sexual harassment issued in the Tribunal in the last year, only eight succeeded – six were unsuccessful, and four were withdrawn or settled. It puts this down partly to the potential costs involved in bringing a claim, the relatively low compensation awards available (particularly where the claimant remained in employment), and the three month time limit that applies to claims of discrimination. It is also concerned that claimants may be put off by the potential effect bringing a claim would have on their future career prospects.
The report concludes that punitive damages should be made available, and there should be a presumption that if a worker succeeded in a claim of sexual harassment, the employer should be liable for the worker's costs. It suggests that the three month time limit should be extended to six months, and the clock should pause until any internal grievance or appeal procedure was exhausted. It also recommends that claimants should be given some of the same protections that are available in criminal cases involving sexual assault – including lifelong anonymity, and the right not to be cross examined by the person accused of harassment. It suggests that judges should be given special training in relation to sexual harassment cases.
The report also recommends that the statutory questionnaire be reintroduced in harassment cases, and if the employer is evasive in its replies, or fails to reply, the Tribunal should be entitled to draw adverse inferences from this. The committee recognises that there were concerns that the previous statutory questionnaire procedure, which had been in force until 2013, was being abused and employers were being required to respond to onerous questionnaires. As such, it has recommended that the government should consult on whether standardised questions could be developed in order to streamline a reintroduced questionnaire procedure.
Finally, the report proposes that another repealed provision be reinstated – the power of Tribunals to make wider recommendations to employers in discrimination cases, which require employers to implement structural changes to their organisations to prevent the recurrence of incidents of harassment.
The report is very concerned about the way in which non-disclosure agreements were apparently being misused to scare victims into silence
These agreements were stringent, oppressive and, potentially, unenforceable. The committee noted that the Public Interest Disclosure Act 1998 has some provisions designed to protect whistleblowers in these circumstances, but these provisions do not allow whistleblowers from approaching the police, the EHRC or the HSE. The report therefore proposes that NDAs should be used ethically, and it should be an offence for an employer to attempt to gag whistleblowers or those considering reporting a crime. The scope of the restrictions should be clearly explained so that individuals entering into them were made aware that they were not prevented from voicing their concerns with appropriate third parties. The report also proposes that members of the legal profession who draft "potentially unenforceable" agreements should be subject to disciplinary action by the SRA.
In order to try to monitor the effectiveness of any action taken as a result of the report, the committee proposes that measures are put in place to capture data relating to the number of sexual harassment claims in the Employment Tribunal, and that the government should carry out large scale surveys every three years. It also recommends that action plans should be put in place to respond to the findings.
Whether the specific proposals will be implemented remains to be seen. However, they are ambitious in their scope.
The report is ambitious in what it tries to achieve. It has clearly recognised that there is a serious problem with sexual harassment, and makes some bold proposals for how to deal with the problem. Some of the proposals are sensible and the majority of stakeholders will welcome them. However, employers may be concerned that the report will lead to an increased burden on them – particularly if the statutory duty is introduced. There is no mention in the report as to proportionality: so a small business, employing two or three people may face a huge task if it has to put in place procedures that apply equally to a large scale employer. Some will argue that rather than blaming regulators and employers for not doing enough, MPs could have taken action much earlier both in terms of removing Tribunal fees and setting out some guidance for employers.
By changing time limits in the Tribunal, this is likely to lead to confusion and will mean that some claims will be missed – for instance, a claim of unfair dismissal will still need to be brought within three months, even if the claims for discrimination will not need to be lodged for at least six. This could well lead to a situation in which an emploee who is constructively dismissed as a result of being harassed could find that their dismissal claim was brought out of time.
There is also a real risk that by concentrating the argument on sexual harassment, this will skew the protections under employment law. The report talks about trying to make sure that measures will be taken so the problem will be addressed after the 'media circus' has moved on. There is a slightly uncomfortable sense that had the media circus not focussed on this, nothing would have been done. And in the meantime, other forms of discrimination could be left behind.