ELA’s responses on Sexual Harassment in the Workplace

ELA Response to Government Equalities Office (“GEO”) Consultation on Sexual Harassment in the Workplace

2 October 2019

Summary

Since the Me Too movement, which included women form around the world sharing their stories of workplace sexual harassment, there has been a focus on whether the law in Britain adequately protects workers from harassment and discrimination. 

There have been a number of consultations and enquiries into the current legal protections, the use of settlement agreements in these types of claims and whether reform is needed in any area to ensure that workplace harassment (alongside other forms of discrimination) is addressed. 

The responses below set out the views of a small number of employment practitioners who are part of a committee reviewing harassment and related discrimination reforms.  The committee is made up of a cross-selection of legal advisers to reflect the broad constituency of ELA.  The committee includes legal advisers from public and private sector, different geographical locations, advisers to individuals or companies as well as a blend of both.  The responses below are to set questions posed by the Government Equalities Office and do not represent the totality of ELA’s views on this subject.  Our consultation responses on related matters are published on our website.

In summary, the ELA standing committee responding to this consultation are largely in favour of a mandatory duty to prevent harassment (and possibly also extended to discrimination) provided that the right to individual enforcement is limited to those with a related claim under the equality legislation.  There is consensus that the current legal defence available to employers of taking all reasonable steps to prevent harassment/discrimination is not widely used or understood, and work is required to provide clear guidance which is easy to access by employers. 

One of the more important shifts arising out of the Me Too movement is the recognition that there is little organisational oversight in many workplaces of complaints that have arisen in relation to harassment and discrimination.  ELA’s committee is largely supportive of a requirement that employers maintain an internal register of complaints and outcomes in order to analyse what steps they need to take to prevent future harassment or discrimination.  There are clear concerns around accuracy of internal registers and data subject requests.  However, ELA’s committee does not support a requirement of external reporting at this time.

The ELA committee supports the re-introduction of legislation to protect workers against third party harassment, and to impose constructive knowledge of risk within certain sectors where concerns are widely reported.  The committee accepts that a balanced approach is needed if the government were to legislate to protect volunteers against harassment and discrimination, but also considered that interns were likely to be captured within current definitions of workers already so protected.

Finally, the extension of legal time limits to bring a claim could be extended to 6 months but in practice this is unlikely to make a significant difference to claims except in relation to maternity/pregnancy cases.

Read the full paper here


ELA Response to BEIS Consultation: Confidentiality clauses: measures to prevent misuse in situations of workplace harassment or discrimination

2 May 2019

Summary
A. The working party established for the purposes of responding to this important consultation is drawn from the broad constituency of ELA members across the UK and with differing experiences of advising employers (in both the private and public sectors) and employees.  The views expressed represent a consensus drawn from the various views expressed by the working party.  They, naturally, do not represent the full range of views of all ELA members.

B. As advisers to employers and employees, to those making allegations of misconduct and to those alleged to have committed and/or be responsible for misconduct, the working party considers that there is a place for further review and regulation of confidentiality agreements (or NDAs), particularly in settlement agreements, to reduce the risk that such agreements prevent proper reporting of sexual misconduct at work.

C. It is equally important to recognise that agreements including provision for confidentiality are a vitally important dispute resolution tool in a broader commercial and employment context.  Accordingly, proper use of confidentiality provisions should not be excessively restricted.  The working party considers that any restrictions must therefore be proportionate to the desire on both sides to be able to bring a wide variety of employment-related disputes to a conclusion without undue uncertainty as to what might happen in the future.  Individuals who have suffered sexual harassment in the workplace may, for a variety of reasons, decide against reporting to the authorities or litigating. Confidentiality should be available as an option for individuals who want to make this choice.  (Employees may, for example, be worried about the impact of disclosure on future employment prospects or on children or other family members.)It is also important to recognise that there is often significant dispute between the parties over facts; that it is not always possible for the employer to ascertain the truth with certainty; and that there is no practical remedy for defamation available to ordinary people with limited means.  Damage to reputation can have a very significant impact on employees’ personal and working lives, and future income.
D. In the working party’s view, there is a need to establish clear parameters as to those disclosures that must not be restricted following the settlement of claims.

E. We recognise the benefit of oversight for confidentiality clauses but this would be a difficult framework to introduce and maintain.  The main concern for solicitors advising both sides is the lack of regulatory clarity.  This has been further underlined with the SRA’s warning notice of 12 March 2018.   It is vital that all of the moving parts which govern use of confidentiality provisions in settlement agreements are reviewed together to ensure that there is consistency.  The current whistleblowing legislation, discrimination provisions, the SRA notice, any new statutory code of practice and the proposals from BEIS must all work in harmony to avoid on-going uncertainty for employees, employers and their advisers in the broader interests of being able to resolve workplace disputes.

F. Further, we would emphasise that looking at confidentiality agreements in isolation is not sufficient to address the serious underlying issue of sexual harassment.  In our view, a broader review is needed of the framework which protects individuals and provides recourse in relation to such conduct.  Review should include consideration of matters such as training (mandatory perhaps for larger companies), and should also consider granting investigation and enforcement powers to a statutory body such as the Equality and Human Rights Commission (‘EHRC’) to encourage bystander intervention and remove the emphasis from the victim to pursue redress.  We consider that introducing meaningful sanctions is the only way to achieve real change, such as the substantial fines capable of being imposed under the GDPR.  An overhaul of cultural norms is required to achieve a genuine reduction in sexual harassment and related inappropriate conduct.

Read the full paper here


Sexual Harassment & Employment Law

Summary

This paper is intended to provide information and insight to those considering potential change to employment laws and practices related to workplace sexual harassment.  The paper offers some commentary on current laws and their impact, in practice, on victims, perpetrators and employers.  It is further informed by a limited survey of ELA members completed on 20 July 2018, to which 464 ELA members responded (8% of those included in the survey).  Please note that this paper is not intended to provide a comprehensive overview or review of sexual harassment law, but simply to contribute to current debate (as at the date of this paper). 

There are a number of reviews, initiatives and bodies currently focused on sexual harassment at work including, for example, the Parliamentary Women & Equalities

Committee inquiry into sexual harassment in the workplace, the Law Society, the Solicitors Regulatory Authority (‘SRA’), the Equality and Human Rights Commission (‘EHRC’) and the Advisory Conciliation and Arbitration Service (‘ACAS’).    This paper is intended to complement and assist those bodies and reviews, and there is naturally some overlap between the content of various reports and contributions and this paper.  In particular, the paper submitted by employment and partnership lawyers, CM Murray LLP, to the Women & Equalities Committee inquiry offers some helpful perspectives on employment law and sexual harassment.  As discussion develops we anticipate that this ELA paper may need to be updated and/or replaced. 

It should be noted that whilst ELA members have, in many respects, differing views, responses to ELA’s Survey from claimant and respondent-focused lawyers were markedly consistent in many areas.

Read the full paper here