Jayne
Bryant AM, Chair, Standards of Conduct Committee
Ty
Hywel
National Assembly
for Wales Cardiff Bay
CF99
1NA.
May 2,
2018
Dear
Chairperson,
Thank
you for the recent opportunity to provide oral evidence to
the
Committee’s
Inquiry into the Review of the Code of Conduct for Assembly
Members.
During
the session, I undertook to share with you our then upcoming
report:
Turning
the tables: ending sexual harassment at work.
We
recently published this report, which you can view at the above
link.
This
report shares evidence about sexual harassment in the workplace
gathered from individuals and employers. It makes recommendations
about how to end sexual harassment at work.
I hope
this report can inform the Committee’s work. If you would
find it helpful to discuss the report, please let me
know.
We
look forward to continuing to assist the Committee on the Review
and in your wider work.
Yours
sincerely,
Ruth
Coombs
Head
of Wales
Equality and Human
Rights Commission,
2
Turning the
tables: Ending sexual harassment at work
Introduction
Employers should
protect their employees from sexual harassment at work. Yet the
evidence we have gathered about British workplaces shows this
isn’t happening. Too many people are being silenced by toxic
workplace cultures and very real fears of victimisation, and
employers’ responses are inconsistent and, in many cases,
risk being ineffective.
The Equality and Human Rights Commission
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. We use our unique powers to help
make Britain a fair society in which everyone has an equal
opportunity to fulfil their potential. As a United Nations
(UN)accredited National Human Rights Institution and a National
Equality Body, we work with similar bodies in Scotland and Northern
Ireland, across Europe and internationally, to protect and promote
equality and human rights.
Recent high-profile testimonies have
shown pervasive sexual harassment in contexts as diverse as
Hollywood and Westminster, and highlighted the real barriers that
many people experience in reporting it. No workplace is immune to
sexual harassment, and a lack of reported cases does not
necessarily mean they have not occurred. Employers are responsible
for ensuring that employees do not face harassment in their
workplace. They should take reasonable steps to protect their
employees and will be legally liable for harassment by their staff
if they fail to do so.
We wanted to
discover how sexual harassment is dealt with by employers, and to
draw on the insights of individuals who have experienced sexual
harassment at work. Our aim was to learn what had happened when
individuals reported cases of sexual harassment and what they felt
should be done to improve practice. Between December 2017 and
February 2018, we gathered evidence from around 1,000 individuals
and employers. We uncovered the shocking and stark reality of
individuals whose careers and mental and physical health have been
damaged by corrosive cultures which silence individuals and
normalise harassment. We also found a lack of consistent, effective
action on the part of too many employers.
Based on this evidence, we are calling on
the UK Government to show clear leadership and implement our
recommendations to eliminate sexual harassment in every British
workplace, through transforming workplace
cultures, promoting transparency and strengthening legal
protections. We
need action in all three areas to turn the tables in British
workplaces; shifting from the current situation where individuals
risk their jobs and health to report and putting the onus on
employers to effectively prevent and resolve harassment.
Our recommendations for change are
detailed at the end of this report.
What is sexual harassment?
•
Sexual harassment is unwanted conduct
of a sexual nature, which is intended to, or has the effect of,
violating a person’s dignity or creating an intimidating,
hostile, degrading, humiliating or offensive environment for
them.
•
Examples include unwelcome physical
contact, sexual comments, promises in return for sexual favours and
displaying sexually graphic pictures.
•
Even if unwanted conduct is not
intended to cause distress, it can still have the effect of
violating a person’s dignity or creating an offensive
environment.
•
Whether or not unwanted sexual conduct
violates a person’s dignity or creates an offensive
environment depends on the victim’s perspective and whether
their reaction is reasonable in all the
circumstances.
The employee’s experience
In December 2017,
we asked for evidence from individuals who had experienced sexual
harassment at work. We received 750 responses to an online survey.
The aim was not to describe the scale of the problem, but to draw
on a wide range of experience to support practical solutions and
potential improvements. Three-quarters of people who responded had
experienced sexual harassment at work; the rest had witnessed
harassment or supported others.
Nearly all of the
people who had been sexually harassed were women. Male respondents
were more likely to state that they had supported a colleague or
witnessed harassment, or that they had not experienced sexual
harassment at work. While sexual harassment can be perpetrated by
both men and women, we know that women are most often the targets.
Harassment in the workplace reflects power imbalances based on
gender and is part of a spectrum of disrespect and inequality that
women face in everyday life.
The most common
perpetrator of harassment was a senior colleague. However, just
under a quarter reported being harassed by customers, clients or
service users.
Most of the
responses were from permanent employees. Around one in five were on
zero hours, fixed term or temporary contracts. A small number
described harassment occurring during a recruitment process prior
to employment. One respondent stated: ‘I wasn’t
employed at this point. I was propositioned after an interview for
a job and told that if I did what was requested then the job was
mine. I didn’t report it.’
Harassment by customers and
clients
Around a quarter of those reporting harassment said that the
perpetrators were third parties such as customers or clients.
Respondents reported that this type of sexual harassment was dealt
with particularly poorly. Many of these submissions were from
individuals working in the hospitality industry, although other
industry sectors were also represented. A common theme was a lack
of management support, with sexual harassment and assault
apparently being viewed by some employers as a ‘normal’
part of the job. A number of those experiencing sexual harassment
by customers felt that they had no option but to put up with this
if they wanted to continue in their job.
|
Experiences of individuals harassed by customers
‘We’ve been told nothing can be done for harassment
with customers except if we see someone who stalks you, [then] we
are allowed to hide out back.’
‘[I was] basically told putting up with sexual harassment
from customers was part of the job.’
‘I worked in a bar and one of the customers pinned me up
against the wall and tried to put his hands in my underwear –
in a packed bar, in full view of everyone.’
‘I was repeatedly harassed by a male customer, I was told to
just deal with it – and had to continue serving him
daily.’
|
Harassment by managers or senior colleagues
Another common theme in responses was the existence of a power
imbalance between the perpetrator of the sexual harassment and the
person being harassed. Many individuals believed that senior
colleagues, due to their position of influence within
organisations, were not challenged by HR departments or other
colleagues, with some describing these individuals as
‘untouchable’. Fears of victimisation as a result of
reporting were particularly acute where the alleged perpetrator
held decision-making power over the individual who had been
harassed.
Reluctance to report
Around half our respondents hadn’t reported their experience
of harassment to anyone in the workplace. Barriers to reporting
included:
• the
view that raising the issue was useless as the organisation did not
take the issue seriously
• a
belief that alleged perpetrators, particularly senior staff, would
be protected
•
fear of victimisation, and
• a
lack of appropriate reporting procedures.
One respondent told us that they ‘felt too intimidated to go
to senior management as all were male and colluded with
harassment’. A number of respondents, in particular younger
workers and those not on permanent contracts, believed they would
be risking their jobs if they complained.
Inexperienced, unsupportive managers were also seen as barriers to
reporting harassment. In many cases, sexual harassment was viewed
as a problem that the individual – rather than the employer
– had to deal with. Some people were advised against
reporting incidents by managers or HR. One respondent said:
‘I was advised against reporting an incident as it would
“damage my brand”.’
A number of male respondents who reported being sexually harassed
at work by both men and women said that they faced particular
barriers in reporting their experiences. A few felt that their
experiences wouldn’t be taken seriously because they were
men. One individual, who described repeated experiences of sexual
harassment, highlighted the male-dominated culture of his workplace
and ‘stigma’ attached to being sexually harassed by
another man as barriers to reporting, stating: ‘My experience
was in a very macho environment and reporting it was unimaginable
to me’.
Consequences of reporting
Lack of employer action
In around half of the cases where individuals did report the
incident, respondents said that employers took no action as a
result. Many other respondents described instances where their
employers’ response to a report of sexual harassment was to
try to minimise their complaint or silence them. One person said:
‘I was called in to a meeting with the accused and his boss,
and told it was a misunderstanding.’ Another respondent who
had supported a colleague described a situation where ‘the
company acted as if the victim was the problem and tried to get her
not to make a formal complaint’. A number of people who
reported sexual harassment were treated as ‘trouble
makers’. One individual told us: ‘[Managers] said I was
the problem. I need to rein my neck in.’
A common theme among individuals who reported sexual harassment was
a feeling that their employer did not take them seriously,
dismissing the reported case as merely ‘a bit of fun’
or ‘laughing it off as boys being boys’. In a number of
these cases, it was clear that other people had complained about
the same person previously and that the perpetrator’s actions
were widely known. One respondent said her line manager told her:
‘Well you know how he is, just stay out of his way.’
This example mirrors other responses, which described situations
where harassment was tacitly accepted, with the onus put on the
person who had been harassed to avoid contact with the perpetrator;
often difficult in a work situation.
A number of female respondents described being blamed for
‘encouraging’ the sexual harassment and were told that
their clothes or actions must have been the cause. One individual
stated: ‘I was told it was my own fault for wearing tight
clothing. I was actually dressed in a black suit and white
shirt.’ Another woman told us that when she reported being
harassed ‘[her] manager asked if [she] had flirted with the
perpetrator’.
Negative consequences of reporting
In many cases where employers did take action as a result of an
individual reporting sexual harassment, the response was a negative
one. Some respondents described being threatened that their career
could be damaged if they pursued their complaint, or said they had
been disciplined or lost their job as a direct consequence of
reporting. In a number of responses, people said they were blamed
for the harassment taking place or felt punished by being moved to
another department or role when the alleged perpetrator was left in
their existing role. Some respondents also described a significant
negative impact on their physical and mental health as a result of
the manner in which their complaint was handled.
|
Negative responses
‘A partner who was close to the perpetrator said the firm
would ensure my career was destroyed if I told anyone
|
else
about the incidents.’
|
‘I lost my job, my reputation and my
health.’
‘The victim endured horrendous cross-examination
and was never believed. The perpetrator remained on as a highly paid
employee while the victim effectively had to leave an otherwise
great career.’
|
Helpfulness of response
When we asked individuals to rate how helpful the response to their
report of sexual harassment had been, most people said that the
response they had received from managers and HR staff had been
unhelpful. The most popular rating was ‘very
unhelpful’. Fewer respondents reported sexual harassment to
trade union representatives. However, of those that did, most said
they found the response helpful.
|
Individuals’ recommendations for change
We asked people, based on their
experiences, what employers should be doing to help prevent sexual
harassment occurring at work.
A number of individuals highlighted the
impact of negative workplace cultures in normalising sexual
harassment and inhibiting reporting. In these workplaces, sexual
harassment was accepted as part of workplace culture and anyone
complaining about it was viewed negatively and often ostracised.
Many people highlighted the need to change these cultures as a
precursor to making progress on preventing sexual
harassment.
One respondent stated that her priority
was ‘changing the “laddish” workplace
culture’. She gave an example from her workplace: ‘A
head chef and his colleagues would flirt and touch new waiting
staff, and talk in a highly sexualised manner – they thought
this was funny.’
Other popular suggestions
included:
Changing
workplace culture:
•
a mandatory anti-harassment
policy
•
improved training for line managers
and staff
•
anonymous reporting
tools
•
unbiased handling of complaints and
protection for complainants, and • procedures to protect people reporting sexual
harassment from victimisation.
Promoting
transparency:
•
Clear policies and processes
communicated through induction and training.
•
Greater protection for individuals
working with customers and clients.
•
An end to settlements that require
confidentiality or force victims of harassment to
resign.
Strengthening
protection:
•
Lengthening the time limit for
tribunal claims.
These suggestions are all reflected in
our recommendations for change.
|
What employers told us
We wrote to Britain’s largest employers to gather evidence
on:
• the
systems, processes and safeguards in place to prevent workplace
sexual harassment
• any
steps taken to ensure that all employees feel able to report
instances of sexual harassment
•
specific steps taken to ensure that people who report sexual
harassment are not victimised
•
plans to take further steps to prevent and respond to sexual
harassment at work in the near future, and
•
examples of good practice.
We also shared our guidance on sexual harassment and the law,
asking employers to delegate responsibility for ensuring a shared
understanding and effective implementation of this guidance to a
senior HR representative.
We selected large
employers across a wide range of sectors (for example, business,
government, public and third sectors, and academia), while we also
focused on sectors where evidence suggests sexual harassment is
more likely to occur, such as those that use younger workers,
agency staff, and imbalanced employment power structures such as
internships. We received responses from 234 employers. They
revealed a picture of inconsistent practice, elements of which
highlighted why the experiences described by individuals continue
to occur.
Under the Equality Act 2010, employers are liable for acts of
sexual harassment by one employee towards another unless they have
taken all reasonable steps to prevent it. There are currently
no minimum requirements, but reasonable steps should include
an anti-harassment policy and appropriate procedures for
reporting harassment and taking action.
Despite these legal obligations, we found only a small minority of
employers using effective approaches to prevent and address sexual
harassment at work.
Preventing workplace sexual
harassment
Most employers told us that they had a policy which dealt with
sexual harassment and some shared their documentation with us.
Harassment was often covered by a wider policy – for example,
a diversity and inclusion policy. Several of the documents we saw
made minimal reference to sexual harassment.
Around two-thirds of the employers that responded trained line
managers on harassment. This fell to around half in relation to
training offered to staff other than line managers. Our guidance
highlights that including information on sexual harassment in
induction is an effective way of ensuring that all new staff are
clear about the behaviours expected in the workplace and how to
report instances where behaviour falls below this standard.
However, only around two out of five employers included such
information in their induction processes.
Fewer than a third of the employers who provided us with evidence
evaluated the effectiveness of their harassment policy through
methods such as regular staff surveys. Some employers recognised
that this was an area they needed to improve on.
Given the number of individuals who reported being harassed by
customers, clients or service users, and the severity of the issues
raised, we were disappointed to learn that only around one-quarter
of employers who responded provided information for customers or
service users on appropriate behaviour towards staff.
Some employers, however, described positive practice in relation to
policies and training. These included:
• Clear
policies outlining the steps to follow if someone is being
harassed.
• Codes of
conduct stating expected standards of behaviour and the
responsibilities of managers.
• Using
harassment scenarios in induction and training.
• Ensuring
policies are communicated on an ongoing basis, for example, through
antiharassment weeks, training or posters.
• Regularly
monitoring the effectiveness of policies through staff surveys.
One employer told us: ‘We are keen to ensure that harassment
is not dismissed as workplace banter. As a first step, we are
providing training to our HR case management team on the definition
of harassment and what it means in practice.’
Our recommendations for
change: Our recommendations
for a new mandatory duty for employers (recommendation 1.1) and a
statutory code of practice (1.2) will require all employers to take
effective steps to prevent and respond to sexual harassment. These
measures will provide employers with clear guidance on what is
required of them and ensure that there are consequences for failure
to follow that guidance. We are also recommending that Acas should
develop targeted sexual harassment training for managers, staff and
workplace sexual harassment ‘champions’ (1.3) to
support employers in achieving change.
Support for employees to report
harassment
We asked employers whether they had taken steps to ensure that all
employees – including agency staff and younger workers
– felt able to report sexual harassment. Most employers
simply cited the fact that they had a general grievance policy,
although some recognised the shortcomings of this approach. For
example, one told us: ‘Our policy is all-encompassing in
theory, but in practice we do not evaluate its reach and therefore
cannot assess who feels able to report.’ These grievance
procedures did not appear to address the significant barriers to
reporting described by individuals who shared their experiences
with us.
A small number of employers described examples of more proactive
approaches. Most commonly, this was the use of anonymous tools for
reporting harassment, such as telephone lines run by a third party
or anonymous online reporting tools. However, only two responses
included reference to supporting agency workers to report sexual
harassment.
We were particularly encouraged to learn that the Ministry of
Justice Digital and Technology team, informed by the results of
internal staff surveys, is currently working with an outside
organisation, Safely Spoken, to develop an innovative approach to
supporting employees to report bullying and harassment. The online
tool is based on the Callisto Project, a sexual assault reporting
tool used in universities in the USA. This gives victims the
options, information and support they need, by ‘allowing them
to disclose in their own time and in their own way, and by safely
connecting victims of the same perpetrator together to validate
each other’s experience and take action’. Evaluation of
this system has revealed that victims of sexual assault who used
Callisto were five times more likely to report their assault than
those who did not.
A few employers had trained staff to support people who had
experienced harassment. One university, for example, has a network
of dignity advisers to act as a confidential first port of call for
concerns.
Others described the importance of clear and consistent messages
from senior leaders. One employer told us it has issued ‘a
statement from [its] chief officer specifically reminding staff of
the importance of reporting any issues’.
Our recommendations for
change: Our recommendations
include a requirement for the Government to develop an online tool
to make it easier to report sexual harassment (recommendation 1.4).
We are also recommending that all employers should publish their
sexual harassment policy on their website (2.2). We have made a
number of recommendations designed to restrict the use of
non-disclosure agreements and confidentiality clauses which prevent
employees speaking out about sexual harassment (2.3). Making
discussion of harassment more open will encourage reporting of
incidents.
Preventing victimisation
Around one in six of the employers who provided evidence had either
not taken any steps to prevent victimisation or were unsure whether
any such steps had been taken. Although most employers told us that
they had taken action, in the majority of cases this appeared to be
limited to having a policy or other form of documentation which
made reference to victimisation. Only a small number of the
employers who responded provided details of specific initiatives to
prevent the victimisation of people who complain about
harassment.
One employer outlined the three key ways it protects staff who
report incidents: ‘We have a clear message of zero tolerance
for victimisation, communicated through various channels. We also
have a designated whistleblowers’ champion at board level.
Finally, we provide ongoing monitoring and support during and after
an investigation. This could include changes to roles or reporting
lines, suspension of the alleged harasser, counselling, and
tracking the reward outcomes of the aggrieved.’
Our recommendations for
change: Our recommendations
include a mandatory duty for employers to take reasonable steps to
protect workers from victimisation (recommendation 1.1). The
recommended statutory code of practice (1.2) will explain the steps
employers should take to ensure nobody is victimised. We have
recommended that interim relief should be available so that those
dismissed by their employers for making a complaint can seek
continuation of their employment and reduce their financial losses
(3.2).
Our recommendations in full
It is clear from our findings that existing obligations and
guidance for employers are not enough to protect workers from
sexual harassment or to protect victims. We are making the
following recommendations to bring about:
• A
change in workplace culture, with employers taking more
responsibility for preventing harassment.
•
Greater transparency about incidents of harassment and the
policies in place to prevent them.
• New laws
to strengthen protection for harassment victims.
1 Changing culture
1.1 Mandatory duty
Our recommendation
The UK Government should:
•
Introduce a mandatory duty on employers to take reasonable steps to
protect workers from harassment and victimisation in the
workplace.
•
Breach of the mandatory duty should constitute an unlawful act for
the purposes of the Equality Act 2006, which would be enforceable
by the Commission.
Employers owe their workers a duty of care, but there is currently
no statutory duty on employers to take steps to prevent harassment
or victimisation in the workplace. If a person brings a legal claim
in an employment tribunal, the employer can defend the claim by
saying that it took steps to prevent the harassment from occurring.
We do not think that this defence is an adequate means of
protecting workers and it does not encourage best practice.
Moreover, the Commission cannot currently take enforcement action
for failure to take preventative steps. A breach of the mandatory
duty would enable the Commission to take action. We believe that a
mandatory statutory duty would create a clear and enforceable legal
requirement on all employers to safeguard their workers and help
bring about cultural change in the workplace.
1.2 Statutory code of practice
Our recommendations
The UK Government should:
• Introduce
a statutory code of practice on sexual harassment and harassment at
work, specifying the steps that employers should take to prevent
and respond to sexual harassment, and which can be considered in
evidence when determining whether the mandatory duty has been
breached.
• Give
employment tribunals the power to apply an uplift to compensation
in harassment claims of up to 25 per cent, at their discretion, for
breach of mandatory elements of the statutory code.
We propose that a statutory code should address sexual harassment
and other forms of harassment at work. It will set out the steps
that employers must take to prevent harassment and comply with the
mandatory duty. For example, a code would require all employers to
have a harassment policy in place and would specify what a policy
must contain. A code can also give guidance to employers about
steps that they should take and highlight best practice. For
example, a code could provide guidance on anonymous reporting
mechanisms for larger employers. If an employer has not complied
with the mandatory elements of the code, an employment tribunal
should be able to increase the compensation for the claimant by up
to 25 per cent. This mirrors the Acas Code of Practice on
disciplinary and grievance procedures, which has helped to change
employer practice.
1.3 Training
Our recommendation
• Acas should develop
targeted sexual harassment training for managers, staff and
workplace sexual harassment ‘champions’.
The code of practice will include guidance on training. Acas should
therefore develop targeted sexual harassment training to support
employers in achieving the requirements of the code and promote
this to employers, particularly in sectors where previous research
has shown sexual harassment is more likely to occur.
1.4 Reporting mechanisms
Our recommendation
• The UK Government should,
drawing on learning from established online reporting mechanisms,
develop an online tool which addresses the barriers identified in
this report and facilitates the reporting of sexual harassment at
work.
Culture change will not happen overnight and, even in those
workplaces with the most effective approaches to preventing and
responding to sexual harassment, there will remain circumstances in
which employees feel unable to raise a complaint of sexual
harassment. To encourage people to report, individuals need
mechanisms that address the significant barriers to raising issues.
In other areas, technology is being used effectively to support
people to report in a way that feels safe to them. The UK
Government should look to these examples and develop a tool which
allows individuals to report confidentially and helps employers
improve their practice by identifying persistent issues.
2 Promoting transparency
To achieve the necessary change in culture, greater transparency is
required so that it is clear what the exact scale and nature of
workplace sexual harassment is across Great Britain, and whether
attempts to prevent and respond to it are succeeding.
2.1 Data collection
Our recommendations
The UK Government should:
• Collect
data from individuals across England, Scotland and Wales every
three years to determine the prevalence and nature of sexual
harassment at work.
• Report
the findings from its data collection, broken down by protected
characteristics, including an evaluation of measures taken to
tackle the problem since previous reports.
• Publish
an action plan following each report, stating how it will address
enduring areas of discrimination and disadvantage.
We need to be able to track progress in areas such as the number of
incidents that take place, that are reported to employers and that
are taken to tribunal. We also need to be able to track trends such
as where sexual harassment takes place (for example, in the
workplace, at social events or online). To do this, we need
large-scale reliable data which is collected at regular intervals.
With the assistance of such data, we will be able to assess the
success of measures taken and make improvements to policy and
practice where necessary.
2.2 Publication of policy
Our recommendations
Employers should:
• Publish their
sexual harassment policy and the steps being taken to implement and
evaluate it in an easily accessible part of their external
website.
• Ensure that
their sexual harassment policy explicitly addresses their
obligations under the Equality Act 2010 in respect of workers
supplied to them by third parties, ensure it is shared with
organisations supplying staff and services and that workers
supplied are aware of the policy and how to report instances of
sexual harassment.
Employers can play an important role in ensuring that all current
and potential employees are aware of their commitment to preventing
sexual harassment at work. They can raise awareness of the steps
they are taking to ensure their workplaces are free from sexual
harassment and how everyone – whether directly employed, an
agency worker or even an interviewee – can report any
incidents that do occur. Making this information public will
facilitate sharing of best practice and encourage employers who are
falling behind to improve their practices. It will also help to
ensure that atypical workers are not excluded from any available
workplace protections through lack of information or any other
means.
2.3 Non-disclosure agreements and confidentiality
clauses
Our recommendations
• The UK
Government should introduce legislation making any contractual
clause which prevents disclosure of future acts of discrimination,
harassment or victimisation void.
• The
statutory code of practice on sexual harassment and harassment at
work should, subject to consultation on the code, set out:
- The
circumstances in which confidentiality clauses preventing
disclosure of past acts of harassment will be void.
- Best
practice in relation to the use of confidentiality clauses in
settlement agreements including that the employer
should, for example:
n Pay for the employee to receive independent legal
advice on the terms of the
agreement, including the reasonable costs of agreeing
changes to the terms.
n Give the employee a reasonable amount of time to
consider the terms of a settlement agreement
before it will become effective.
n Allow the employee to be accompanied by a trade
union representative or colleague when discussing
the terms of a settlement agreement.
n Only use confidentiality clauses at the
employee’s request, save in exceptional
circumstances.
n Annexe a statement to the settlement agreement
explaining why confidentiality
clauses have been included and what their effect is.
• In
Scotland, the Law Society of Scotland and the Faculty of Advocates
and, in England and Wales, the Solicitors Regulation Authority and
Bar Standards Board should issue guidance regarding
solicitors’ advocates and barristers’ professional
obligations when drafting and advising on confidentiality
clauses.
• The UK
Government should ensure that all guidance on the use of settlement
agreements in the public sector is updated to state that clauses
should not be used to prevent disclosures of acts of sexual
harassment.
The law on non-disclosure agreements (NDAs) and confidentiality
clauses in settlement agreements is complex. NDAs and
confidentiality clauses are often used to deter people from
speaking out even if they are not legally enforceable and the
employer would not take legal action against the person, but those
subject to such agreements would often rather comply than face any
risk that they may be sued.
There is no clear legislative or common law rule prohibiting
clauses which seek to prevent a person from making a disclosure of
sexual harassment. Currently, an NDA or confidentiality clause
which seeks to prevent an individual making an allegation of sexual
harassment will be void if the allegation amounts to a
‘protected disclosure’, as defined in section 43A of
the Employment Rights Act 1996, or if it seeks to prevent the
disclosure of criminal activity. Not all allegations of sexual
harassment will constitute protected disclosures or criminal
activity. Section 142 of the Equality Act 2010 prohibits a
contractual clause if it ‘constitutes, promotes or provides
for’ unlawful treatment under the Act. The scope of this
provision is uncertain and has not had any effect on the use of
confidentiality clauses.
Non-disclosure agreements used at the start of an employment
relationship, or in advance of a particular event, may discourage
people from reporting harassment which occurs during the course of
their employment or the event. This type of agreement should not be
used at all. Any clause which seeks to prevent disclosure of future
acts of discrimination or harassment should be void.
Confidentiality clauses used in settlement agreements after the
allegation of harassment has been made may also prevent people from
speaking about their experiences and reduce the likelihood of
systemic problems being tackled. These clauses should be more
closely regulated.
Although Acas will act as an independent third party in the
negotiation of settlement agreements, many settlement agreements
are negotiated directly between employees and employers or their
lawyers. These agreements often contain more extensive
confidentiality provisions. Lawyers therefore have a role to play
by ensuring that both employees
and employers are correctly and thoroughly advised on the effect
and enforceability of confidentiality clauses, and that employees
have a proper opportunity to consider such clauses and feel able to
resist them where necessary. We would welcome guidance from the Law
Society of Scotland, the Faculty of Advocates, the Solicitors
Regulation Authority and Bar Standards Board to support lawyers in
this regard.
The public sector has previously taken the lead in seeking to
ensure that confidentiality clauses are not used to prevent
employees ‘blowing the whistle’. It should take the
lead again in ensuring that confidentiality clauses and public
money are not used to prevent employees from discussing harassment.
Updating guidance for the public sector on the use of
confidentiality clauses would be the first step towards achieving
this.
3 Strengthening
protection
Our findings have shown that existing protections are not
sufficient and the nature of sexual harassment is such that
additional protections, and time to take advantage of them, are
required.
3.1 Limitation
periods
Our recommendations
• The limitation period for
harassment claims in an employment tribunal should be amended to
six months from the latest of the date of:
- the act
of harassment
- the last
in a series of incidents of harassment, or
- the
exhaustion of any internal complaints procedure.
• In claims brought out of
time, once the claimant has established the reason for delay, the
burden of proof should shift to the respondent to establish why
time should not be extended.
The time limit to bring an Employment Tribunal claim of three
months from the act of harassment is a significant barrier to
people bringing such claims. For many people, three months will not
give them sufficient time to recover, consider what has happened to
them, make a decision to pursue the claim, seek legal advice and
start the legal process. Employees are also often faced with a
choice of allowing the limitation period to expire while they
pursue an internal grievance, or issuing a claim before they have
exhausted internal procedures.
3.2 Interim
relief
Our recommendation
• Introduce interim relief
provisions for harassment and victimisation claims, similar to
section 128 to 132 of the Employment Rights Act 1996, but 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.
Individuals who wish to pursue a claim will often have been
dismissed from their employment, which will exacerbate any economic
disparity between them and their employer and make bringing a claim
even harder. Employees who have been forced out of employment
should be given the means to redress this balance by seeking
reinstatement or continuation of their contract pending the outcome
of their claim.
3.3 Restoring lost
protections
Our recommendation
• Restore
the power, under section 124 of the Equality Act 2010, of
employment tribunals to make recommendations aimed at reducing the
adverse effects of discrimination on the wider workforce.
• Make new
regulations, reintroducing an amended statutory questionnaire
procedure in employment-related discrimination and harassment
claims, following consultation on how best to ensure that the
procedure is effective and proportionate.
• Reinstate
section 40 of the Equality Act 2010 and amend it to remove the
requirement for the employer to know that the employee has been
subjected to two or more instances of harassment before they become
liable.
Employment tribunals frequently hear evidence about poor employment
practice, but they are currently able to make recommendations only
about the employer’s treatment of the individual claimant. In
order to achieve systemic change, it is critical that employment
tribunals are able to make recommendations to improve
employers’ practices towards the workforce more broadly.
Statutory questionnaires enabled individuals to understand whether
or not they had a viable discrimination or harassment case against
their employer and supported early and cost-effective resolution of
claims. We understand that the original questionnaire process
sometimes led to extensive questions being asked of employers. We
propose that statutory questionnaires are reintroduced after
consultation to ensure that they are used proportionately.
Our evidence shows that people in customer-facing roles may be more
vulnerable to harassment by third parties, such as customers or
clients. While we appreciate that there may be an argument that the
existing harassment provisions cover harassment by third parties,
the law is not clear in this area and employers may not be liable
even if they have failed to take steps to prevent such harassment
from occurring. We recommend that the third party harassment
provisions in section 40 of the Equality Act 2010 be reintroduced.
They should also be amended to remove the requirement for two or
more instances of harassment. It is possible for employers to be
aware that harassment is likely to occur without a worker having
demonstrated that it has happened before. The reintroduction and
amendment of section 40 would make the law clearer for employers
and employees and provide effective protection, in particular for
employees in customer-facing roles.
