The Parliamentary and Women and Equalities Committee has recently published a 5 point plan to deal with sexual harassment in the workplace after a survey found that 40% of women have experienced unwanted sexual behaviour whilst at work.
The problem is not limited to women either with nearly a fifth of men also experiencing harassment in the workplace.
How is sexual harassment defined by the law?
Under the Equality Act 2010 harassment is unlawful and has a specific legal definition.
Sexual harassment is unwanted conduct, related to the sex of the individual, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. In addition, where unwanted conduct of a sexual nature occurs which has the same purpose or effect as referred to above, that also amounts to harassment.
In deciding whether the conduct has that purpose or effect, the tribunal must take into account:
-the perception of the individual;
-the other circumstances of the case; and
-whether it is reasonable for the conduct to have that effect.
As such, it is a subjective test with an objective overview.
How can an employee bring a claim?
An individual can bring a claim for harassment in an employment tribunal. This must be done within 3 months of the harassment taking place (although this time limit is extended by the compulsory ACAS early conciliation procedure). Usually, an employee will bear their own legal costs for bringing a claim which can be substantial. If successful, then an individual can be awarded compensation for injury to feelings.
What does the Parliamentary Women and Equalities Committee propose?
Given the prevalence of sexual harassment in the workplace, despite the current laws in place, the 5 point plan is aimed at strengthening the protection against this type of behaviour. It calls for the following:
-A duty on employers to prevent harassment which would be supported by a statutory code of practice on how to do achieve this (a breach of which could lead to compensation being increased by 25%);
-A more active role for regulators, including the HSE;
-Easier recourse to tribunals (by increasing the time limit for bringing a claim; tribunals being able to award punitive damages against employers, and a presumption that the employer will pay the employee’s costs if the latter is successful);
-Clarification of the use of non-disclosure agreements in cases of harassment; and
-Better data on sexual harassment.
What would be in the statutory code?
The committee suggests the statutory code would cover the following:
-reporting systems and procedures;
-guidance on anonymous reporting and data protection issues; support for victims;
-how to investigate and record complaints;
-how to identify criminal offences; and
-the use of training, induction and risk assessments.
What should employers be doing now?
At the time of writing, the report simply sets out proposals and it’s not clear which, if any, will be introduced.
For now, it’s important that employers treat allegations of harassment seriously and ensure that there is an appropriate workplace culture.
As with any type of harassment, employers should:
-have in place up-to-date policies dealing with harassment and a clear procedure as to what to do when an allegation is raised;
-ensure the disciplinary policy makes it clear that such behaviour will constitute gross misconduct;
-ensure the policies are accessible and brought to the attention of employees, particularly during induction and any updates should be clearly communicated;
-ensure that their employees (and importantly, managers) receive regular training on the policies and procedures;
-keep records of the training and the employees who have attended;
-implement and follow the policies when an allegation is raised.
If in doubt, take advice to ensure the matter is dealt with in the most appropriate way.
CLR Law is a niche law firm specialising in employment law and HR. Contact Claire or Yvonne on 0191 6030061 or hello@clrlaw.co.uk for further information or advice.
