In a move which continues to demonstrate the government’s commitment to tackling sexual harassment in the workplace, and reinforces the importance which employers need to attach to this issue, the Government Equalities Office has published a consultation paper today which explores the existing protections for workers and how these could potentially be strengthened.
This step is the latest in a series of high profile inquiries into workplace sexual harassment, and follows the government’s earlier consultation on Measures to prevent the misuse of confidentiality clauses in situations of workplace harassment or discrimination (for which a response is still awaited), plus a series of reports by the Women and Equalities Committee, including its 2018 report, Sexual harassment in the workplace, and its 2019 report on the Use of non-disclosure agreements in discrimination cases.
These developments demonstrate that the government’s approach of strengthening protections for workers sits alongside a desire to restrict the circumstances in which employees can be prevented from disclosing the treatment they have received. Employers cannot afford to ignore this. The proposals are potentially hard-hitting, impacting not only on how employers manage workplace behaviour but also on the clauses which can be included in contracts of employment and settlement agreements.
Employers also need to be alive to the fact that allegations of sexual harassment have potentially criminal implications. Inappropriate sexual conduct is likely to be a criminal offence. If reported to the police, this can have a significant impact on when, or if, an employer should conduct any internal investigations. Proceeding without a thorough understanding of the criminal process could potentially jeopardise a criminal case (which in itself could also lead to claims of constructive dismissal or discrimination by the complainant) and also result in the failure to fulfil certain duties which could potentially apply under the Police and Criminal Evidence Act 1984 (PACE). Employers must, of course, also ensure that they are not themselves committing a criminal offence in the way in which they handle allegations of sexual harassment, which could include concealing an offence or perverting the course of justice – note, for example, that including in a settlement agreement a provision which prevents disclosure to the police could qualify as perverting the course of justice.
Employers therefore need to treat the issue of workplace sexual harassment with the utmost importance, at the highest levels of the organisation, and should seek advice at the earliest opportunity if they are unsure how to proceed with either implementing a workplace programme to address the issue, or handling any allegations which are brought to their attention.
The consultation paper released today (and which runs until 2 October 2019) asks for views on the following:
- The evidence for the introduction of a mandatory duty on employers to protect workers from harassment and victimisation in the workplace, enforceable both by individuals and the EHRC, and breach of which could potentially lead to a financial penalty;
- How best to strengthen and clarify the laws in relation to third party harassment;
- The evidence for extending employment tribunal time limits in the Equality Act from the existing 3 months;
- Whether interns are adequately protected by the Equality Act;
- The evidence for extending the protections of the Equality Act to volunteers; and
- Non-legislative interventions to prevent sexual harassment or, where it has occurred, to stop it from happening again.
It also confirms that work is underway to introduce a statutory Code of Practice on sexual harassment and harassment at work on which there will be separate consultation. The EHRC will release technical guidance later this year which will form the basis of the Code of Practice.
Finally, today’s consultation paper also sits alongside an online questionnaire which is aimed at the government further understanding:
- employers’ roles in preventing sexual harassment by members of their own staff;
- employers’ roles in preventing sexual harassment of their staff by people from outside their organisation;
- volunteers and interns’ legal rights to protection from harassment and discrimination;
- people’s experiences of accessing justice, and any barriers they face.
Responses to the online questionnaire are particularly encouraged from people who:
- have experienced sexual harassment in the workplace, or associated issues such as sex discrimination;
- have experienced sexual harassment in their role as a volunteer or intern, or associated issues such as sex discrimination;
- have indirect experience of sexual harassment in the workplace, for example supporting a colleague who has been harassed;
- have considered going to an Employment Tribunal on harassment or discrimination grounds.