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Despite the apparently all-consuming BREXIT agenda the Government has just announced a package of measures designed to tackle sexual harassment at work. The topic has, no doubt, been pushed up the agenda because of the #metoo movement and surrounding media exposure throughout 2018. The proposals build on the previous recommendations of the Women and Equalities Committee (discussed in our previous Insight). Some involve consultation on specific amendments to the law, whilst others are simply announcements about future initiatives about which no details are yet known.

It is clear that the Government recognises more action on sexual harassment in the workplace needs to be taken. Minister for Women, Victoria Atkins said: “Sexual harassment at work is illegal, but sadly that disgusting behaviour is something that many women still experience today. We are taking action to make sure employers know what they have to do to protect their staff, and people know their rights at work and what action to take if they feel intimidated or humiliated. Everyone has the right to feel safe at work.” Business Minister Kelly Tolhurst reiterated this message saying: “It continues to disappoint me that in this day and age some women still face discrimination and harassment at work.”

The most significant of the Government proposals are:

• Introduction of a new statutory code of practice on sexual harassment which will be developed by the Equalities and Human Rights Commission under its Equality Act 2006 powers.
• Consultation on non-disclosure agreements (NDAs). These have been the subject of intense media scrutiny over the past year and continue to be controversial as discussed by us in a previous Insight here.
• Consultation on the “evidence base” for a new legal duty on employers to prevent sexual harassment in the workplace.
• Consultation on strengthening and clarifying the laws on third party harassment in the workplace.
• Consultation on whether further legal protections are required for interns and volunteers. Given that individuals holding these positions are not afforded the extensive protections of employees under the law, it is recognised that these groups may be at particular risk.
• Consultation to explore the evidence for extending employment tribunal time limits for Equality Act 2010 cases (beyond the current 3 months as extended by an Early Conciliation process).
• Consideration of whether further learnings can be taken from the criminal justice system to use in the employment tribunal system to ensure vulnerable claimants have appropriate protection. For example in the criminal system witnesses can provide evidence remotely to protect their identity and this is perhaps an approach which could be applied to tribunal proceedings.

The remaining proposals include:

• “Awareness raising” work with ACAS and the EHRC
• A new survey to gather regular data in the prevalence of sexual harassment
• Ensuring that public sector takes action to tackle and prevent sexual harassment
• Working with regulators for whom sexual harassment is particularly relevant to ensure they are taking appropriate action
• Consideration of whether the list of organisation who can receive whistleblowing information includes the right bodies.

Comment

While it is clearly important to tackle sexual harassment from as many angles as possible, it needs to be ensured that the proposals do not cause more harm than good. For example banning NDAs could result in fewer complainants receiving compensation by way of settlement payments and in more litigation in sexual harassment matters. As we have previously noted, the difficulty with banning NDAs in their entirety is that this may affect the willingness of employers and those accused of sexual harassment to enter into settlement discussions, where confidentiality no doubt plays a large part in incentivising those involved to offer monetary settlement. We anticipate that instead of a blanket ban we may therefore instead see more statutory regulation of the specific content of NDAs in order to ensure their use is not inappropriate or oppressive.

In relation to a new legal duty on employers to prevent sexual harassment at work it is unclear how this would differ from or work alongside employers’ existing obligations under the Equality Act 2010.

In relation to third party harassment the previous provisions on this in the Equality Act were abolished by David Cameron’s Coalition Government in 2013. Although strengthening such protections may enable more employees to bring such claims, it may put employers in a difficult and vulnerable position given their limited control over the actions of third parties.

On the question of extension of the time limit for bringing sexual harassment or discrimination claims if implemented this would mean a separate set of rules for such claims when compared with e.g. unfair dismissal claim. While as historic child abuse cases have demonstrated, it can often take victims of sexual harassment and abuse some time to be able to talk about what happened to them having different time limits would make the employment tribunal process more complex. This is a proposal which the Government has previously rejected and it is unclear what has changed to justify revisiting the point.

Finally the benefits of greater use of remote witness evidence at employment tribunals, such as reducing stress for the witnesses, would have to be weighed against the interests of justice for the individual accused.

There is certainly a great deal to consider from all perspectives and we will keep you informed of the outcome.

If you have any queries regarding the proposed reforms or any of the issues discussed above, please contact a member of the Stronachs Employment Team.

Morven White, Trainee Solicitor

Chambers Leading Firm 2019

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