Government opens full women-at-work sexual harassment probe after urgent calls for action

14 Feb 2018 By Emily Burt

Legal system remedies are currently ‘toothless’, making standalone harassment claims rare

The government has called on organisations and individuals in the UK to submit evidence on sexual harassment against women at work, as it launched a full inquiry to track its extent and determine how to improve existing laws, with access to justice at the top of the agenda.

The inquiry directly follows a one-off women and equalities committee evidence session on sexual harassment of women in the workplace, in which experts called for urgent change in the law.

At the hearing, experts proposed extending time limits for sexual harassment employment tribunal claims, reinstating employer tribunal questionnaires, reducing legal costs and bolstering sanctions for non-compliance with harassment laws. 

In measures designed to safeguard against sexual harassment, the introduction of  mandatory workplace risk assessments and line manager training to change work cultures and encourage the reporting of harassment, alongside third-party liability for employers, were all mooted.

Committee chair Maria Miller MP said: "Over the past few months there have been widespread reports of women’s appalling experiences of sexual harassment at work. Our recent evidence session with legal experts and employee and employer representatives painted a stark picture.

“Clearly much more needs to be done, both by government and employers: this inquiry is about identifying solutions. We need to change workplace culture, keep women safe and provide effective legal remedies.” 

People can submit their views on women’s experience of sexual harassment at work and proposals for effective government action for one month until Tuesday 13 March. 

The inquiry will examine steps the government can take to increase confidence in women reporting complaints of sexual harassment, and protect staff from sexual harassment by clients, customers and other third parties. 

Currently, employers are not liable for third-party harassment of employees – after the government repealed in 2013 a legal provision to that effect in the Equality Act 2010. 

The inquiry will also examine the effectiveness of current legal routes to redress for female workers who suffer sexual harassment, including improved access to tribunals and options for remedies.

Anna Birtwistle, partner at law firm CM Murray, told People Management that any legal changes by the government must be significant enough to drive employers to implement long-term changes within their organisations. It was also vital for women to access justice where they suffered sexual harassment at work in the future.

“In terms of accessibility to justice, it is not the ease with which you can bring litigation, but asking what the upside is. You have to weigh up the costs – not just financially but in terms of stress, publicity and reputational issues – against what a complainant can gain,” she said.

“This is a crucial issue. There is a legal system available, but ultimately the remedy is so toothless you very rarely see standalone sexual harassment claims being brought. 

“Claims might occur in the context of a wider discrimination complaint, such as sex discrimination or unfair dismissal, but it’s hard to see circumstances in which a standalone claim makes sense as the only available remedy is an injury to feelings award that could be as small as £800, or an absolute maximum of about £40,000, which almost never happens.”

As part of addressing the legal action around sexual harassment, the committee will also scrutinise the pros and cons of using non-disclosure agreements (NDAs) in sexual harassment cases.

These ‘gagging’ clauses recently came under the spotlight after it was revealed that hostesses working at the Presidents Club charity dinner were required to sign NDAs by their staffing agency. Nick Evans, Fletcher Day employment lawyer, said employers should take the opportunity to re-examine their processes with the help of an employment lawyer. 

“Responsible employers will continue to do their utmost to protect their staff,” he said. “There are legitimate reasons that a business may use an NDA, but we expect to see a full-scale review of their use as a result of this inquiry. 

“In terms of widespread or systematic wrongdoing where disclosure is in the public interest, 'whistleblower' protection will override any NDA.

Birtwistle added: “If the inquiry hopes to affect cultural change, that means making [sexual harassment] claims serious enough for employers to sit up and take action. 

“Arguably that is starting to happen, but there has to be financial risk for an employer if they are found vicariously liable for an instance of sexual harassment from one employee to another.

“Consideration should be given for punitive damages rather than a straight injury to feelings award; they could look at the way the costs regime works. It depends how far they want to go.”  

Ksenia Zheltoukhova, CIPD head of research, told People Management that employers should take steps now to improve their workplace culture and end sexual harassment. 

“Organisations must simultaneously prevent harassment at work and encourage an environment where harassment can be discussed,” she said. 

“There are two contributing factors: the productivity of the process, including how you bring up harassment allegations and implementing a clear staff policy, and improving the overall culture and having bad behaviours clearly labelled inappropriate by senior management.” 

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