In December 2018, the UK Government announced that it will introduce a new statutory code of practice to tackle workplace sexual harassment following a July 2018 report from the House of Commons’ Women and Equalities Select Committee (the Committee).
The Committee’s report called on the Government to:
- Prioritise sexual harassment: The report calls on the Government to place employers under a mandatory duty to protect workers from harassment and victimisation which would be enforceable by the European Human Rights Commission (EHRC) (with significant financial penalties for breaching the duty), to be supported by a statutory code of practice;
- Demand a more active role from regulators: The report recommends that regulators hold employers to account if they fail to take reasonable steps, and adopt enforcement procedures which make it clear that sexual harassment by a regulated person is a breach of professional standards;
- Improve enforcement processes for employees: The new statutory code would set out steps that employers must implement. The report also recommends that Employment Tribunals should have discretion to apply a 25% uplift for compensation in the event that it is found that an employer has failed to comply with the code (similar to what we see already in the case of the ACAS disciplinary and grievance code of practice). In addition, the report states that punitive damages should be available and costs should follow the event. Both of these would represent a break from tradition in the Employment Tribunal context;
- Review the use of non-disclosure agreements (NDAs): The report calls for a review of the use of NDAs (which are very common in the context of settlement agreements), controlling and regulating their use: This is an area which has already received significant attention from the Solicitors Regulation Authority; and
- Publish better data: The report calls on the Government to publish better data to increase general awareness of the extent of sexual harassment in the workplace, and to understand whether any new measures implemented are having a positive impact on reducing the number of such incidents.
The Committee cited a ComRes survey published last year, according to which 40% of women and 18% of men had experienced some form of unwanted sexual behaviour in the workplace. Three-quarters of the participants in the survey did not report their experience.
The Government, in response to the Committee’s report, provides for 12 broad action points. In particular, the Government agreed to ask the EHRC to develop the statutory code of practice referred to above.
In addition, the Government agree to consult on:
- whether protection for interns and volunteers is necessary;
- whether to extend the Employment Tribunal time limit from 3 months to 6 months;
- how to better regulate the use of NDAs;
- strengthening and clarifying the laws in relation to third-party harassment; and
- the evidence base for introducing a new legal duty on employers to prevent sexual harassment in the workplace.
The Government also confirmed its commitment to:
- amending whistleblowing law to add the EHRC to the list of prescribed persons for whistleblowing purposes;
- working with regulators to ensure they are taking appropriate action;
- seeing whether any lessons can be learned from measures in place in the criminal courts;
- working with ACAS, the EHRC and employers to raise awareness; and
- gathering data on the prevalence and nature of workplace sexual harassment at least every three years.
The Government also rejected a number of the Committee’s recommendations such as awarding an uplift in the event of a breach of the code, the ability to award punitive damages and altering the costs rule in Employment Tribunals in sexual harassment claims.
The Committee criticised the Government’s response for its failure to include sanctions for non-compliance. The Committee also contested the Government for the delay in responding to the Committee’s requests, adding that tackling sexual harassment deserves the same emphasis as efforts to prevent data misuse and money laundering.
The new code will be drafted by the EHRC with support from the Government and could prove to be a useful tool for employees, employers and Employment Tribunals. Until then, at the very minimum, employers should have in place a clear and well publicised code of conduct, clarify how and to whom concerns should be raised and ensure that appropriate and consistent action is taken in the event that an issue arises.