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The Equality and Human Rights Commission (EHRC) has produced Turning the tables: ending sexual harassment at work, a report aiming to expose the reality of workplace sexual harassment. The legal definition of ‘sexual harassment’ is unwanted conduct of a sexual nature that is meant to, or has the effect of, violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

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 evidence gathered exposes the stark reality of individuals whose careers, mental and physical health have been damaged by a toxic culture that suppresses them and makes harassment part and parcel of the working environment.

Power imbalance and workplace sexual harassment

Experiences of workplace sexual harassment often reflect power imbalances. The most common perpetrators are senior staff but it does not stop there. Sexual harassment can also come from third parties, such as customers and suppliers. The frequent barriers to reporting it are fears of victimisation, not being taken seriously and a lack of appropriate reporting procedures.  However, the greatest hurdle to proper reporting is the employer’s responses. These regularly involve minimising the employee’s complaint, often silencing them; treating the harassed employee as a troublemaker; dismissing the report case as ‘a bit of fun’; advising against reporting for fear of damaging the employer’s goodwill or brand; laughing it off as ‘boys being boys’; threatening loss of jobs or disciplinaries; and blaming the act on the choice of the worker’s clothing. Sadly, this list goes on and on.

Zero tolerance for workplace sexual harassment

The key message behind this report is: enough is enough. the government and employers are to work together to achieve a zero-tolerance culture for workplace sexual harassment.

The report calls on the government to implement the commission’s recommendations to put an end to any unchallenged tolerance of workplace sexual harassment.  The essential recommendations are as follows:

  • Mandatory duty on employers to safeguard their workers and take reasonable steps to protect them from workplace sexual harassment and victimisation;
  • A statutory code of practice addressing workplace sexual harassment in all its different forms, which will set out the steps employers are to take to prevent, identify and respond to it;
  • The employer’s compliance to the mandatory duty;
  • The power of the Employment Tribunal to apply 25% uplift for breach of mandatory elements of the statutory code;
  • Training through Acas to increase awareness in managers and staff, and name a workplace sexual harassment champion;
  • Reporting tools allowing individuals to report confidentially and help employers improve their practice;
  • To achieve transparency and monitor progress, collecting large-scale reliable data at regular intervals;
  • Publication of a workplace sexual harassment policy in an easily accessible part of the employer’s website, with steps taken to implement and evaluate it;
  • Exclude prevention of disclosure of future acts of discrimination, harassment and victimisation from non-disclosure agreements and confidentiality clauses. Confidentiality clauses in settlement agreements after the allegations of harassment have been made to prevent people from speaking about their experience. These clauses are to be closely regulated, so lawyers have a big role to play in advising employers and employees correctly and thoroughly, in order to make these clauses enforceable;
  • Limitation period for harassment claims ought to be extended to six months from the latest date of the act of harassment, the last in a series of incidents of harassments or the exhaustion of any internal complaints procedure;
  • Interim relief provisions for harassment and victimisation claims, with a deadline of one month from the act of harassment or the last in a series of acts of harassment, to make an application;
  • Restoring lost protections, such as section 124 of the Equality Act 2010, which makes recommendations aimed at reducing the adverse effects of discrimination on the wider workforce;
  • Making new regulations to reintroduce an amended statutory questionnaire procedure in employment-related discrimination and workplace sexual harassment claims, following consultation on how best to ensure the procedure is effective and proportionate;
  • Third-party harassment provisions in section 40 of the Equality Act 2010 ought to be amended to remove the requirement for two or more instances of harassment.

It is going to take team work. Employers, UK government and Employment Tribunals are to work hand in hand to make the workplace harassment-free.

Philosophy behind the workplace sexual harassment report

A workplace ought to be exactly what it says on the tin: a place where an individual works. Workers should be free to do so without having to suffer from any form of harassment or any fear of negative ramifications from reporting acts of this nature. The EHRC report focuses on harassment of a sexual nature and reminds employers that the onus is on them to take reasonable steps to prevent harassment. The more an employer does to transform their workplace culture, promote transparency and comply with its legal duties to eliminate workplace sexual harassment completely, the less likely it will be faced with a lawsuit. In the worst case scenario, they will at least be armed with a strong defence against it.

For more information on any of the issues raised in this article, contact Kay Holland in the Bristol Employment team by emailing [email protected] or calling 0117 904 7720.