25 July 2018

The Women and Equalities Commission has published a new report on Sexual Harassment in the Workplace. The report has concluded that sexual harassment in the workplace is widespread, with a BBC survey (in November 2017) finding that 40% of women and 18% of men have experienced unwanted sexual behaviour in the workplace.

Sexual harassment can have a devastating impact on those who are subjected to it and it is illegal. The Equality Act 2010 defines sexual harassment as “unwanted conduct of a sexual nature” which has the purpose or effect of violating dignity or “creating an intimidating, hostile, degrading, humiliating or offensive environment.”

Such behaviour can include sexual jokes or comments, remarks about someone’s body or appearance, displays of pornographic material, cat calls or wolf-whistling, flashing, sexual advances, groping, sexual assault or rape. Liability is not always limited to the perpetrator of the offence: employers can be vicariously liable for acts of harassment committed by its workers, agents and, in some cases, third parties. Further, some forms of workplace sexual harassment can also amount to a criminal offence.

The WEC report recommends that the Government:-

• Introduce a new duty on employers to prevent harassment in the workplace, enforceable by the EHRC and punishable by substantial financial penalties;
• Extends sexual harassment protection to interns and volunteers;
• Reintroduces third party harassment, so that employers are liable if they have failed to take reasonable steps to prevent others harassing their staff;
• Requires public sector employers to conduct risk assessments for sexual harassment in the workplace and implement an action plan to mitigate any risks;
• Extends the time limit for lodging tribunal claims in sexual harassment claims to six months and pauses the countdown until employers’ internal complaint and grievance procedures are completed;
• Enables tribunals to award punitive damages in sexual harassment cases, so that there would be a presumption that employers will have to pay the employee’s legal costs if it loses a sexual harassment case;
• Limits the ability to use confidentiality clauses in settlement agreements to ‘government approved’ standard clauses; and
• Makes it a professional disciplinary offence for lawyers (and, in certain circumstances, also a criminal offence for the employer and the lawyer) to propose the use of a non-approved confidentiality clause in Non-Disclosure Agreements (NDAs).

The EHRC has stated that it welcomes the report by the WEC and is developing a Code of Practice to support employers to put measures in place to prevent harassment in the workplace.

A copy of the WEC report can be found here 

Contact: Lesley Grant Associate ljg@bto.co.uk T. 0141 221 8012