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Volume XI, Number 216

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August 02, 2021

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This is Not Working – the Answer? One Consultation, Please (UK)

Hot on the heels of a petition for new legislation aimed at preventing sexual harassment in the workplace, the Government has launched its consultation on the matter. The group behind the petition, called “This is Not Working”, is made up of unions, charities and women’s rights groups.

The #ThisIsNotWorking campaign and the Government consultation stem from evidence that sexual harassment in the workplace remains a prevalent reality. In 2018 the Women and Equalities Committee produced a report on sexual harassment in the workplace. That report set out statistics gathered from various research surveys, including that 40% of women and 18% of men had experienced some form of unwanted sexual behaviour in the workplace. The consultation looks at whether current law provides the requisite protection in practice, whether there are any gaps and what else can be done to ensure people are properly protected at work. Steps towards protecting individuals from any form of unlawful harassment at work are invaluable, but how effective would the proposals set out in the consultation actually be from a legal perspective?

The #ThisIsNotWorking campaign demands “a new, easily enforceable legal duty requiring employers to take all reasonable steps to protect workers from sexual harassment and victimisation”. Sound familiar? The campaign also asserts that “[c]urrently, there is no legal duty on employers to take proactive action to prevent [sexual harassment] from happening”. However, that is fairly misleading at law and arguably very misleading in practice. It is true that you will not find a statute imposing a duty on employers to take proactive steps to prevent sexual harassment, but as the consultation points out, in practice the law already sets out strong and clear protections against sexual harassment in the workplace under the Equality Act 2010. Under current legislation, employers are vicariously liable for acts of sexual harassment committed by their employees – even if they don’t know of or approve of the conduct. An employer’s only defence is if it can show it took all reasonable steps (there it is again) to prevent the employee from committing the discriminatory conduct, which means that any sensible employer will already take those steps on a pre-emptive basis anyway through policies, training and enforcement action where appropriate.

The consultation suggests that not all employers are taking such steps to prevent harassment and puts forward potential explanations, including the faintly unlikely idea of employer indifference to the risk of failing to comply with the law. Its proposed solution? Impose a mandatory ‘preventative duty’ with a potential financial penalty linked to breach of the duty. This matches one of the #ThisIsNotWorking campaign’s objectives, namely the introduction of penal consequences for employers which don’t comply with measures required to prevent harassment “like mandatory training”, but this already exists in the form of vicarious liability. It would also seem ludicrous for an employer which did not take such measures to face sanctions even if there were no actual harassment in that workplace, and still more so for an employee to be able to make a claim for some compensation for no measures being in place to prevent something which hadn’t actually happened.

When it comes to harassment by third parties, the position is more complicated. The original provisions under the Equality Act 2010 that made employers liable for such harassment were repealed in 2013 as substantially unworkable in practice. The Equality Act 2010 is, therefore, lacking when it comes to clear protection from third party harassment. In its 2018 report “Ending sexual harassment at work”, the Equality and Human Rights Commission gathered evidence from around 1,000 individuals and employers. In that report, the EHRC states that around a quarter of those reporting harassment said the perpetrator was a third party, so the consultation’s focus on improving protection from harassment by third parties is welcome.

The #ThisIsNotWorking campaign also tends towards the sexual harassment of women, but it is an unfortunate reality that men are subject to unlawful sexual harassment in the workplace as well. The statistics referred to above as well as the EHCR’s 2018 report are testimony to the fact that men experience sexual harassment at work, by both women and other men. In fact, the EHCR’s report highlights that men faced particular barriers in reporting their experience – some felt they wouldn’t be taken seriously just because they were men.

The difficulties victims face in reporting incidents of sexual harassments is another issue addressed by the campaign. One of its demands is the ability to report sexual harassment anonymously. The problem is that while this may encourage more people to report harassment, it doesn’t make investigating those reports any easier. In order to conduct an effective investigation into allegations of any form of harassment, the specific allegation needs to be put to the individual accused and on many occasions this won’t be possible without giving away the identity of the person who reported the conduct. Anonymous reporting may also allow greater scope for individuals to make malicious complaints in order to cause others trouble.

Further, there is no doubt that some behaviours satisfying the legal definition of sexual harassment are deeply distressing and embarrassing, but many others are not. We must keep in mind, in a way which the Government’s consultation and the #ThisIsNotWorking group seem not to have done, the enormous breadth of conduct which can be alleged to constitute harassment on gender grounds, the absence of any requirement of intention and the often very subjective nature of people’s responses to things said to them. The consultation essentially elides a one-off joke in mildly poor taste into the same treatment as overt and persistent sexual pursuit. The two are not the same and the consultation is the poorer for not recognising this. In the case of the former, for example, there is no obvious reason why such instances cannot and should not be dealt with directly in the same manner as any other internal grievance.

As a final point, one of the issues the Government is considering is whether people should be given longer to take a harassment, discrimination or victimisation claim to an Employment Tribunal. Currently, individuals have three months from the date of the discriminatory act to go for early conciliation as a pre-cursor to a claim in the Employment Tribunal. This is the same limitation period for bringing other potentially more serious claims, such as unfair dismissal or retaliation for whistleblowing. But how would this extension result in a reduction of sexual harassment in the workplace? Arguably it wouldn’t – it is difficult to see why an individual would benefit from more time to bring a claim in respect of something that is an issue for them in the present. Further, is there any reason that sexual harassment claims should be given priority above any other type of harassment in the workplace? If the time limit is extended to bring a claim for sexual harassment, arguably the same should be done for claims relating to discrimination on the grounds of race, sexual orientation, age, etc, or detriment for trade union activity or asserting a statutory right. On the face of it there is nothing in sexual harassment specifically which requires a longer window for this purpose, especially given the Tribunal’s existing ability to extend time where it is just and equitable to do so.

Don’t get me wrong – I strongly believe that everything that can be done to end sexual harassment in the workplace should be done but I am not clear that these measures are likely to benefit other employees or employers in that process.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume IX, Number 219
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About this Author

Hannah Field Labour & Employment Attorney Squire Patton Boggs London, UK
Associate

Hannah Field is a lawyer in our Labour & Employment Practice Group, covering all areas of contentious and non-contentious employment law. Hannah is also a regular contributor to the firm’s employment law blog.

Hannah provides support to in-house counsel and HR professionals on a wide variety of matters, including drafting and reviewing service agreements, consultancy agreements and other contractual and policy documentation. Hannah also advises both individuals and companies on settlement agreements.

Hannah has particular experience in handling employee data subject...

44 20-7655-1186
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