Towards the end of last year, the House of Commons Women and Equalities Committee (WEC) commenced an inquiry into sexual harassment of women and girls in public places. WEC’s report on this is expected in Autumn 2018. In the meantime, in February 2018, WEC began an inquiry into sexual harassment in the workplace. Both inquiries were a response to the growing concern about the incidence of sexual harassment following the attention to the issue generated by the #MeToo movement and @EverydaySexism. The allegations emanating from the entertainment and hospitality industries (Weinstein and the Presidents Club dinner included) were an additional prompt in the case of the workplace inquiry.

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There is an obvious relationship between work and sexual harassment in public spaces. The risk of being felt-up on the underground or sexually assaulted on the walk home from evening/night work or of being subject to lewd remarks in a job agency may all impede a woman’s ability to take up work of her choice.The right to access public spaces free from sexual violence and harassment is therefore critical if women are to enjoy occupational equality. WEC’s decision to undertake these two inquiries in parallel, then, reflects women’s real-life experiences.

WEC published its report into sexual harassment in the workplace on 25th July 2018 (“Sexual Harassment in the Workplace” Report of the House of Commons Women and Equalities Committee (2018) HC 725.) WEC found widespread sexual harassment at work with evidence indicating that as many as 40% of women have experienced some form of unwanted sexual behaviour in the workplace.  Given its prevalence, it is truly difficult to know whether equality laws have made any difference to the phenomenon of sexual harassment at all: perhaps before the Sex Discrimination Act 1975, sexual harassment was even more common than it is now but it is, even now, endemic.

In its report, WEC made robust recommendations for legal and regulatory improvements.  One of the most important of its recommendations was that a mandatory legal duty should be imposed upon employers to take reasonable steps to protect women from harassment in the workplace. The duty would be supported by a statutory code of practice and enforceable by the EHRC with punitive damages available in the case of a breach.  This recommendation followed submissions from the Equality and Human Rights Commission (reflected in their recent report: “Turning the tables: ending sexual harassment at work” (2018) EHRC.) This is not the first time that the introduction of such a duty has been recommended. It is something that many have proposed for some time. As long ago as 1988, in a report prepared for the EC Commission, it was recommended that “[a] duty should be placed on employers to take reasonably practicable steps to establish and maintain a workplace free ofthe risk to employees of sexual harassment… A Code of Practice should supplement the legislative standard and provide guidance on how to prevent and remedy sexual harassment at work..” (M. Rubenstein, “The Dignity of Women at Work: A Report on the Problem of Sexual Harassment in theMember States of the European Communities”(1988), 39). So the idea is hardly new, but it is no less important for that. As for a code of practice, WEC recommends that this should contain guidance to employers on reporting systems, entailing guidance on reporting procedures, including anonymous reporting, support for victims, training, risk assessments and so on.

The response of the regulatory bodies to sexual harassment was also scrutinised by WEC. The Health and Safety Executive (HSE) was the subject of particularly scathing criticism. While to any ordinary observer in possession of the basic facts sexual harassment might seem to be a paradigm health and safety issue, the report records the CEO of the HSE as stating in evidence that the HSE does not see sexual harassment as “a mainstream health and safety at work issue under the Health and Safety at Work Act”. WEC expressed “deep… concern…” about this. WEC noted that the HSE’s view of the potential harm caused by sexual harassment appeared “cursory” and that it suspected that the issue had “simply been ignored”. Other regulatory bodies did not escape WEC’s attention. WEC recommended much firmer action by professional and other regulatory bodies to address sexual harassment, including by drawing up action plans and by making it clear that the perpetration of sexual harassment by regulated persons is a ground for de-registration.

WEC made a number of other recommendations. They include the re-introduction and expansion of protection against “third party” harassment (following repeal of section 40(2) (4) of the Equality Act 2010). They also made recommendations directed at improving access to justice by, among other things, extending time limits for the issuing of proceedings in sexual harassment claims in the employment tribunal, conferring automatic anonymity on victims, adopting special measures and permitting awards of punitive damages.

Finally, WEC considered the complicated issue of non-disclosure agreements (“NDAs”). Such agreements have attracted considerable criticism because of the silencing of women and the concealment of sexual harassment that follows from them. Practitioners know that while such agreements do indeed silence women, the issues are more nuanced than that short pen-picture may portray. Some women want to avoid legal proceedings and at the same time secure financial compensation for the wrong done to them in a way that allows them to move on. Many do not wish to disclose the fact that they have made a complaint of sexual harassment and/or that they have received a sum in settlement of such a complaint and they do not want others to do so either.   Sometimes financial settlement is conditional upon non-disclosure and if NDAs are not available, employers may be less willing to compensate women without a tribunal hearing in circumstances where a woman would want to do so. There are many reasons why NDAs work for some people and if they were to become unlawful or generally unenforceable that may deprive women of a form of justice that suits them. WEC express concern in their report, however, about the “unethical” use of NDAs. They recommend legislative change to require “plain English” drafting and action by the professional regulatory bodies where lawyers advise on agreements that are potentially unenforceable, among other things.

The report contains many useful recommendations. However, in the main they are not new and some would need considerable finessing if they were to be transposed into law. Whether we can realistically hope for legislative reform at this time must, however, be doubtful.

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About the author: Karon Monaghan QC practises principally in the fields of equality and discrimination law, human rights and EU law. Her work spans the fields of employment law, civil actions and judicial review. She is also the author of ‘Equality Law’ (2013, OUP).

 

(Suggested citation: K Monaghan, ‘#YouToo: The Sexual Harassment in the Workplace Report of the House of Commons Women and Equalities Committee’, UK Labour Law Blog, 6th August 2018, available at https://wordpress.com/view/uklabourlawblog.com).

 

 

 

Posted by UK Labour Law Blog

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