Following the scandal at the Presidents Club earlier this year, the numerous allegations against Hollywood stars and the #metoo movement, the Women and Equalities Committee (the “Committee”) conducted a six month review.
They have now published a report on their findings. The priorities that they want the government to address are to:
- Put sexual harassment at the top of the agenda
- Require regulators to take a more active role
- Make enforcement processes work better for employees
- Clean up non-disclosure agreements
- Collect robust data on the extent of sexual harassment in the workplace.
Putting sexual harassment top of the agenda
The focus here is for there to be a duty on the employer to prevent harassment occurring in the workplace and to be judged against a statutory code of practice. This would then be enforced by the Equalities and Human Rights Commission (EHRC).
The Committee wants more roles in an organisation to be covered by protection from harassment so that interns and volunteers are not excluded. They also want a reintroduction of the protection from harassment by third parties (such as customers) which was removed in 2013.
Requiring regulators to take a more active role
The report recommends that regulators have clearer sanctions and greater power to punish employers who are in breach of the law. The hope is that sexual harassment can be considered a breach of professional standards in the wider industry.
Making enforcement processes work better for employees
A key issue faced by employees is that they may feel alone and be uncertain of how and when to make a claim. They may want to raise the matter internally or may even doubt themselves in the immediate aftermath of the incident. One suggestion is to extend the time limit for bringing a claim after the incident has happened, from three to six months, with a pause if there is an ongoing internal investigation.
Another point is to make it the norm that the employer would pay the employee’s legal costs if the employee won their sexual harassment case.
Cleaning up non-disclosure agreements (NDAs)
Often NDAs are drafted with complex legal jargon and the Committee believe that individuals may feel that they cannot consider their position before signing them or may feel that they have no rights once they have signed up. The chance of bringing a claim to test out the enforceability of an NDA is low when considering the relative bargaining power of the employer and employee.
This means that these agreements are not being scrutinised. In particular, hostesses in the Presidents Club scandal were forced to sign an NDA shortly before they started their shift and could not take the signed agreement with them.
The Committee recommends that they create a standard set of clauses for confidentiality as approved by the government with any deviation from these clauses to result in the lawyer being disciplined. In particular, they recommend extended whistleblowing protection to allow for disclosures to the police or regulators such as the EHRC.
Collecting robust data on the extent of sexual harassment in the workplace
There is not currently a set of data to show the number of tribunal claims for sexual harassment. This means that it is very difficult to measure how successful the provisions have been in reducing claims. The report recommends that this is recorded with the outcome of the case also listed.
What happens now?
The statutory code of practice and reintroduction of third party harassment protection will give further protection to employees. The tribunal statistics would be a useful way to assess the impact of these new measures.
However, the increase to the time limit and the idea of legal fees being paid by the employer are likely to be opposed because it will give additional protection to sex discrimination claims but not discrimination claims based on other factors such as race.
The NDA clauses would need to be carefully negotiated, which could also delay the changes being made.
It remains to be seen how many of these proposals will be taken forward in the near future with the government currently focusing on Brexit. However, the Committee believes these issues need addressing and that the proposals would help give a louder voice to those who have these kinds of disputes.
If you would like to discuss any issues relating to sexual harassment, please contact Tom Pimenta on 0118 952 7284 or email [email protected].
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