Out-Law News 3 min. read
03 Apr 2018, 3:00 pm
Rob Childe of Pinsent Masons, the law firm behind Out-Law.com, said there are basic policies and protocols higher education institutes can adopt to deal appropriately with cases of sexual harassment. He was commenting after the Equality and Human Rights Commission (EHRC) published a report (22-page / 391KB PDF) that identified shortcomings in the way some employers approach cases of sexual harassment.
"A spot light is being shone on sexual harassment and all employers are being challenged on the mechanisms that they have in place to eradicate and deal with this issue," Childe said. "We know that the higher education sector has a number of challenges to deal with in this area, and that some but not all are getting this right."
"The EHRC report shows that employers are failing to get the basics right, and this is fundamental to tackling this issue. The basics include clear policies on sexual harassment that are well written and effective; training for staff on how to deal with sexual harassment complaints sensitively and appropriately and key steps that ensure complaints are not victimised for raising complaints in the first place," he said.
"Those higher education institutions that are lagging behind in putting these steps into practice risk sexual harassment going unchecked and not being investigated properly in the workplace and on campus, with the reputational risk and legal liabilities that come with this," Childe said.
In its report, the EHRC said that it had gathered evidence from 750 individuals and 234 employers on their experiences with sexual harassment. It said it identified "corrosive cultures which silence individuals and normalise harassment" and "a lack of consistent, effective action on the part of too many employers".
The report highlighted cases of harassment where customers or clients were the perpetrators, and said that some of the victims believed "they had no option but to put up with this if they wanted to continue in their job". Further cases of harassment by managers or senior colleagues were also highlighted, but the EHRC found that many of the victims were reluctant to report the cases.
"Barriers to reporting included: the view that raising the issue was useless as the organisation did not take the issue seriously; a belief that alleged perpetrators, particularly senior staff, would be protected; fear of victimisation, and; a lack of appropriate reporting procedures," the report said.
The EHRC also said that there were "negative consequences" for "many" victims of harassment where they had reported the incidents.
"Some respondents described being threatened that their career could be damaged if they pursued their complaint, or said they had been disciplined or lost their job as a direct consequence of reporting," the EHRC said. "In a number of responses, people said they were blamed for the harassment taking place or felt punished by being moved to another department or role when the alleged perpetrator was left in their existing role. Some respondents also described a significant negative impact on their physical and mental health as a result of the manner in which their complaint was handled."
Employers have legal responsibilities to address sexual harassment. These were highlighted in the EHRC's report.
It said: "Under the Equality Act 2010, employers are liable for acts of sexual harassment by one employee towards another unless they have taken all reasonable steps to prevent it. There are currently no minimum requirements, but reasonable steps should include an anti-harassment policy and appropriate procedures for reporting harassment and taking action. Despite these legal obligations, we found only a small minority of employers using effective approaches to prevent and address sexual harassment at work."
The EHRC made a series of recommendations in its report. It said employers should be subject to a new mandatory duty to "take effective steps to prevent and respond to sexual harassment", and that a new statutory code of practice should stipulate the steps employers should take.
Employment tribunals should be given the power to "apply an uplift to compensation in harassment claims of up to 25%" where employers have breached "mandatory elements" of the code, it said. The time limit that victims have to raise harassment claims before an employment tribunal should also be extended to six months, from the current three months, "from the latest of the date of: the act of harassment; the last in a series of incidents of harassment, or; the exhaustion of any internal complaints procedure", it said.
Employers should also publish their sexual harassment policy and the steps they have taken to implement it, the EHRC said. It also recommended that the government set up "an online tool" to enable sexual harassment cases to be reported confidentially
New legislation should also be introduced to make void "any contractual clause which prevents disclosure of future acts of discrimination, harassment or victimisation", the watchdog said.
The EHRC also called for data to be collected from across Britain every three years "to determine the prevalence and nature of sexual harassment at work", and for the data to be used to inform an "action plan" to "address enduring areas of discrimination and disadvantage".