Nothing has changed and yet everything has changed. One year on from the President’s Club dinner in London and some 15 months since Alyssa Milano kick-started the #MeToo movement on Twitter in October 2017, some have questioned what has actually changed in practice. After all, there has been no culture-changing legislation as we have had in recent years with disability and age, and the concept of sexual harassment has existed since the 1980s.
But in reality, there has been nothing less than a revolution with regards to what is, and what is not, acceptable behaviour in the workplace. That has been afact for employers up and down the country, and following a significant government announcement on 18 December 2018, it is now set to be far more than that.
That is because the government finally committed to consulting on a huge range of measures designed to change the playing field in this area. These include the introduction of a new statutory code of practice – a new legal duty on employers to try to prevent sexual harassment in the workplace, including limiting the use (or abuse) of non-disclosure agreements (NDAs); strengthening the law on third party harassment by clients, customers and others brought into the workplace; and also considering extending the time limits for bringing sex harassment claims.
Although these proposals have attracted criticism for being less than the direct introduction of legislative reforms right now, there is no doubt this will follow.
Implications for employers
So what are the ramifications in practice for employers, and how must they make absolutely sure they have adapted their workplace culture to chime with where we are now?
For a start, it is no longer acceptable to rely on sex discrimination or harassment policies to ward off potential liability for sexual misbehaviour. Those in the workplace (not to mention the courts and tribunals) will be looking for far more than that. To deal with this issue, compulsory training sessions for everyone – from top to bottom of any organisation – are needed, as well as buy-in and active support at senior level, and possibly the introduction of a specific whistleblowing charter or channel.
HR departments also need to keep a constant watch on what is happening and being spoken about in the workplace. Taking a ‘wait and see’ approach or even turning a blind eye to rumours and disclosures, whether or not they were in confidence, is not acceptable (if it ever was).
As soon as an issue emerges, it must be investigated and dealt with appropriately without delay. In most cases this can be done internally, but increasingly this will involve commissioning either an internal or an external investigation by HR consultants or lawyers who are specialist in this area.
It is also no longer realistic to think these sorts of issues can just be covered up or bought off as may have been the case in the past. Settlement agreements accompanied by non-disclosure agreements are very much in focus at the moment, and much thought will need to be given to the terms that are acceptable and how they can be introduced with minimum risk. In some instances, going public may be necessary to send a message about culture change or acceptable behaviour.
Lastly, for regulated employers, there is an extra dimension to consider. In the last few months, regulators such as the Financial Conduct Authority (FCA) and the Solicitors Regulation Authority (SRA) have been very public about how seriously they are taking this issue, and falling short of their reporting requirements could have very serious ramifications for an organisation as well as the individuals concerned.
Understandably, many employers have been focused on Brexit and how it is going to affect their businesses in the months ahead. And they may have been comparatively reassured that, at least for now, withdrawal will not herald any immediate changes to our employment laws. But in the field of sex harassment, the opposite is true. Employers must be ready to adapt to the new statutory regime when it comes, and accept that things have changed significantly in the past year.
Richard Fox is head of employment law at Kingsley Napley LLP