Indecent proposal

Adam Bernstein
Friday, December 18, 2020

Considering the impact of coronavirus, it seems that issues relating to sexual harassment in the workplace belong to a different time. But just because coronavirus is more pressing doesn’t mean that they’ve gone away – even with the likely absence of Christmas parties and associated perils this year.

As every employer who has ever had to deal with a harassment complaint, grievance or employment tribunal claim will know, they are expensive and time-consuming. Further, such claims can unsettle a business. Quite simply, they are bad for business and cause reputational harm.

According to Laura McLellan, a partner in the employment team at law firm Walker Morris, the #MeToo campaign has led to a real shift in what is seen to be acceptable and unacceptable both in society in general and the workplace. “Gone are the days when incidents might have been ‘brushed under the carpet’ or a ‘quiet word’ had with offenders,” she says, adding that employers must now take a pro-active stance to keep trouble at bay. “Companies that turn a blind eye to suspected problems or fail to deal with toxic workplace cultures could end up embroiled in costly litigation as well as facing adverse morale and PR issues.”

And Rebecca Hilsenrath, CEO of the Equality & Human Rights Commission (EHRC) agrees. She says that the #MeToo movement has shone a spotlight on the failure of employers to address sexual harassment across sectors, and “more than two years on and we’ve seen some employers wake up, take this on board and start to make differences which will transform working environments and boost the economy through empowering people to reach their potential”.

To back her claim, she quotes research from gender equality charity the Fawcett Society “which found that there has been a significant shift in attitudes to sexual harassment, with the majority of people saying that since #MeToo what is seen as acceptable has changed”. Specifically, the research found that in the 18-34 age group over half of young people said they are now more likely to speak up against sexual harassment, including 58% of young men.

Unwanted attention

But of course, the world of 2020 is a long way from that of 2015 let alone the one that our parents inhabited. Modern standards require higher levels of compliance in so many different areas.

Now more than ever a negative news story can have a far-reaching impact upon an organisation’s reputation, workplace morale, credibility with stakeholders, and ability to attract and retain talent. Worse, it will stay in the ether forever.

As Hilsenrath explains: “No form of harassment can ever be justified and for too long the onus has been on the victim to challenge inappropriate treatment.” As a regulator she says that the EHRC needs to shift the burden “by introducing a mandatory duty on employers to take steps to make their workplaces free from sexual harassment”.

To reiterate, the issue is not going away and to create safe working environments, then as Hilsenrath demands, we need a dramatic shift in workplace cultures.

And attitudes to seem to be shifting, according to McLellan. She points to the 2019 case of a City employee – Nathalie Abildgaard who worked for FM Investors – “who claimed that one of her employer’s directors sexually harassed her when he repeatedly invited her back to his hotel room after a work event in Spain”. She adds that the story is memorable as Abildgaard received a settlement of £270,000 without a confidentiality clause leaving the press free to report on the payment made.

At issue, says McLellan, the employee had alleged that her employer failed to take reasonable steps to prevent the director from carrying out acts of harassment and therefore failed to protect her from workplace harassment. She alleged that the employer failed to respond appropriately after she raised her complaint about the incident. The employer decided not to suspend or dismiss the director. Instead it reduced his bonus for the year and banned him from drinking at work events for 12 months.

The interesting point for McLellan is that “ordinarily, if a claim is settled, you would expect a condition of any settlement to be a full confidentiality clause (or ‘gagging’ clause). But the employee in this case may not have been willing to agree to one.” In other words, Abildgaard clearly felt emboldened to take a stance.

It’s quite clear that the #Metoo campaign has seen individuals feel much more empowered to identify and call out unacceptable behaviour.

New legislation and guidance

To bolster regulation in this area, in January, the EHRC published new technical guidance on sexual and other harassment at work for employers. Described by McLellan as “a lengthy document”, the EHRC says it is “the authoritative and comprehensive guide to the law and best practice in tackling harassment”.

For the EHRC, Hilsenrath says that it is based on the findings and recommendations that were made in a 2018 report, Turning the Tables. “We drew,” she says, “from a wide range of experiences of harassment and expertise from a variety of individuals and employers to develop solutions that can be used in any workplace and against any form of harassment.”

The guidance explains the different forms that harassment and victimisation can take under the Equality Act. Employers, courts and employment tribunals can look to this guidance for clear direction on employers’ legal responsibilities and the practical steps they should take to prevent harassment and victimisation, or to respond to a complaint.

It’s comprehensive and makes very clear what employers should be doing to understand their legal obligations and adopt best practice to unearth, prevent and respond appropriately to harassment complaints.

In McLellan’s view, there are so many recommendations in the guidance that “there can be no substitute for spending time reading through it”.

Further, she thinks that employers ignore it at their peril as “while the guidance does not have the statutory status, it can still be used as evidence in tribunal proceedings”. She expects that in practice, Employment Tribunals are likely to want employers to demonstrate a working awareness of the guidance and compliance with its recommendations where practicable. By extension, those employers who don’t comply with the guidance are likely to find that it is used as a stick to beat them with during tribunal proceedings.

Employers would do well to remember, says Hilsenrath, that “an employer will be liable for harassment under the Equality Act 2010 if it fails to take all reasonable steps to prevent it”. Just following the guidance will generate the steps considered reasonable to prevent and respond to harassment. But there is more for employers to worry about.

Firstly, the government has said that it intends to introduce tougher legislation on workplace harassment. On this McLellan notes that a number of reviews culminated in a public consultation during 2019 on proposed new measures including “introducing a mandatory duty on employers to prevent harassment at work and increasing the time limit to bring a harassment Employment Tribunal claim from three to six months”.

Further, the government has also signalled that it fully intends to tighten up the rules around confidentiality requirements in settlement agreements and non-disclosure agreements. This makes sense to McLellan who refers back to the Abildgaard case: “Individuals are likely to be less willing to agree to onerous ‘gagging’ clauses where they have been subjected to unacceptable harassment.” For her, the question that will be asked by a victim of harassment is likely to be, ‘why should I agree to stay quiet when I am not in the wrong?’

On top of this, the EHRC is keen to establish a statutory Code of Practice on harassment. As Hilsenrath details: “The government has committed to supporting a statutory code based on our technical guidance once it has announced the results of their now concluded consultation.” She hopes that a new preventative duty will also be announced as a result of the consultation.

Building on this, McLellan says that the code “will have similar ‘teeth’ to the ACAS Code of Practice on disciplinary and grievance procedures in that Employment Tribunals will be obliged to take an employer’s non-observance of the code into account when ruling on a claim.”

And this matters for the rules on statutory Codes of Practice are very clear – any breach of the provisions in a statutory Code of Practice is a matter that an Employment Tribunal must, by law, take into consideration. “Effectively,” says McLellan, “this means that a breach or non-observance could, at worst, put a serious hole in an employer’s Employment Tribunal defence”.

“At the very least, it could have a negative impact on the employer’s credibility in the eyes of the tribunal and lead to bad publicity bearing in mind that reporters often attend and report on tribunal hearings.”

Hilsenrath takes a moment to recap and says that the power of the code follows from it “having greater force and clearly sets out the specific steps that employers must take to prevent harassment and comply with the proposed mandatory duty – such as having a harassment policy in place.”

As to when the code will be in place, Hilsenrath comments that “these are unprecedented times and it would not be for us to comment on what may delay the process”. That said, sometime in 2020 is the target.

To summarise

The argument cannot be made simpler – it is no longer good enough for employers to have a policy on anti-harassment that gets dusted off every once in a while. Employers are expected to consider and address the matter at a strategic level; they must actively root out harassment throughout the organisation, from shop floor to board room.

Employers have been warned.


Key recommendations in the guidance

The section in the guidance titled ‘Taking steps to prevent and respond to harassment’ includes a number of points. These fix the bar for good practice substantially higher than many may imagine.

  • Anti-harassment policies should include clear examples to illustrate each definition of the different forms of harassment (gender, race, disability, age, religious belief, etc)
  • Workers should be trained on what harassment in the workplace looks like, what to do if they experience it and how to handle any complaints
  • Policies should specifically address the issue of ‘third-party harassment’ (including from customers), what steps will be taken to prevent it, to remedy it and if it has happened, to prevent it happening again. This is particularly important for external-facing workforces where staff should receive regular training on how to deal with and report harassment
  • IT, communications, social media policies and the like should specifically address harassment including where harassment takes place on personal devices
  • Employers should consider publishing anti-harassment policies on their website to facilitate access for contract workers (who are covered by the protections of the Equality Act 2010) or staff on leave who might find it harder to access the policies internally. The guidance notes that external publication would also demonstrate the employer’s commitment to transparency on the issue of harassment
  • It is not appropriate to just tell employees they can get a copy of the anti-harassment policy from a manager
  • Anti-harassment policies should be shared with businesses that supply workers and services to ensure that all workers supplied are aware of the standards expected of them and how to report instances of harassment
  • Centralised records should be kept that enable trends to be spotted and analysed and staff surveys should be undertaken to evaluate the effectiveness of the policies. Employers should be proactive to trends that might indicate an underlying issue such as behavioural changes, dips in productivity, comments at exit interviews or avoidance behaviours

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