E. Armstrong, ‘Sexual Harassment in the Workplace’

Author: Ellie Armstrong

 

Sexual harassment can be defined as: “violating a person’s dignity, making them feel inferior or humiliated and consequently creating a hostile or unpleasant environment”[1]. Sexual harassment in the workplace is a widespread issue which has become an expected aspect of the working environment. A survey conducted by the BBC found that 41% of women and 18% of men in the UK[2] had been subject to sexual harassment in the workplace at some point during their working lives. This shows that even in light of the #MeToo campaign, sexual harassment is still prevalent and not enough is being done socially or legally to prevent it. Many victims fear the threat of negative backlash if sexually harassing behaviour is reported to their superiors, with feelings of shame and embarrassment hindering their progress. This is echoed in the case of Ms. M. Podlecka v MYM Global Ltd (2018)[3] where the claimant lost her job as a result of reporting sexual harassment at work. Legally, there is a lack of action by the government which means that cases are often brushed under the carpet and not thoroughly investigated. As a result, viable cases are not reported and victims often have to continue working with the perpetrator or move to different employment. The Employment Tribunal procedure is also lacking in development, with time limits hindering the success rate of cases. Moreover, the enforcement of statutory provisions is limited meaning that there is no clear procedural understanding for employers. Ultimately, the government and employers, have a legal and moral duty to create and maintain a safe and secure working environment free from sexual harassment.

 

Lack of Action by Employers

 

There is a distinct lack of action by employers against sexual harassment in the workplace. The lack of investigative standards and efforts to address the issue are widespread due to the underdevelopment of thorough measures such as policies and guidelines which advise upon the subject. Jillian Merchant, an employment solicitor with Thompsons expressed this, stating, “it’s one of these things that employers seem to find really difficult, but actually it’s not. All they need to do is investigate both sides and make a decision, but the issue is that they don’t want to make that decision”. Additionally, employers do not have the necessary information or knowledge to deal with these cases. It is often commonplace for the victim to be asked irrelevant questions about what they were wearing and their behaviour at the time of the incident instead of the alleged harassment. These forms of victim blaming may be partially due to the lack of women in top positions, with only 12% of CEO’s being female[4]. This means that there is a lack of balance and equality in the working environment and as a result, there are no differing perspectives on the subject at hand.

 

Furthermore, section 123(1) of the Equality Act 2010[5] states that: “proceedings on a complaint may not be brought after the period of three months commencing the date of which the complaint relates to”. However, an investigation into a complaint of sexual harassment within a company will last for more than the specified three months thus, even if the complainer is willing to seek action they are hindered by their own employer. This is echoed by Merchant: “it takes so much for people to raise a complaint, but sadly employers often let them down at the first hurdle[6]”. Moreover, even though cases such as Prewett v Greene King (2019)[7] outline the importance for employers to consider that sexually harassing behaviour can happen regardless of intention, the lack of established requirements means that employers do the minimum concerning the safety and education of its employees. It can therefore be viewed that the legal legislation encumbers rather than enables the victim. Any recognition of sexual harassment by employers is usually a paper-based compliance as there is not set policy for them to abide by.

 

The current lack of action by employers also demonstrates the lack of necessary incentives to achieve progress. For example, breach of the General Data Protection Regulation can result in a fine of up to 4% of income[8], meaning that the regulation is taken seriously and is strictly followed. This conveys the fact that certain areas of commercial control have more weight than others, due to the stringent measures and imposed fines. This approach needs to be taken when concerning sexual harassment in the workplace as it would bring an air of importance and seriousness which would ensure employers treat the complainer fairly, as well as meticulously scrutinising the case in question. Therefore, the government has a duty to legally implement protocols much like the Data Protection Regulation, in order to prevent sexual harassment in the workplace and help inform employers upon the correct procedures.

 

Furthermore, the unscrupulous and unregulated use of non-disclosure agreements (NDAs) by employers to silence victims of sexual harassment is unprecedented. The legally binding contract means that often victims with a strong claim of harassment in the workplace do not bring their case and instead settle for a sum of money. Consequently, the perpetrator is free to continue working in the same environment and the likelihood of sexual harassment occurring again is increased.

 

 

Employment Tribunal System

The lack of successful claims in the employment tribunal system gives question to the effectiveness of the procedure when in comparison to the large number of employees who report sexual harassment in the workplace. It has been estimated by the Equality and Human Rights Commission (EHRC) that only eight claims were successful in the past year[9]. This mirrors the opinion that the burden on the individual to report and hold both perpetrator and employer to account is too great[10]. Additionally, taking a case to tribunal may cause victimisation and exclusion in the workplace, effectively discouraging victims from reporting their cases. This means that there is a significant absence of exposure concerning sexual harassment at work. The tribunal system must be an efficient remedy for employees with the threat of a tribunal spurring employers to take necessary actions concerning sexual harassment in their workplace. Barriers, such as the time limit of three months, need to be abolished in order to achieve a workplace free from sexual harassment. Furthermore, the current lack of statutory duty on employers to take preventative measures in the workplace means that they are not obliged to protect their employees and have no legal incentive to do so. Moreover, employers can defend a case of sexual harassment in a tribunal hearing by stating that they took ‘reasonable steps’ to prevent the harassment from transpiring[11]. The process of these legal procedures is lacking, as ‘reasonable steps’ are not outlined in any statutory provisions. This means that employers are unclear on what behaviour and actions they should express and the end result is unsatisfactory. This is echoed by Merchant, stating: “Even the big employers get it wrong, so what chance have smaller firms got of getting it anywhere near correct?”[12]. Moreover, there are no serious legal consequences for employers if they fail to take reasonable steps as the EHRC are unable to take implementation action for failure to take anticipatory steps[13].

 

 

Necessary Amendment

 

Enforcing a clear statutory code of practise will mean that employers are made aware of their legal obligations towards sexual harassment in the workplace. By setting out the actions that will be taken as well as the sanctions that will be enforced, the widespread problems will be halted at their roots. Additionally, a reform of the tribunal system and the Equality Act 2010 need to take place. The three-month time limit to raise a claim is too restrictive and prevents the course of justice as investigations have often not been concluded. Additionally, existing sections of the 2010 act should be strengthened in relation to the reasonable steps defence (s109), which does not currently outline what the reasonable steps are, therefore causing employer confusion. This would mean that employer focus on sexual harassment would be sufficient as their duty would be clearly outlined.

 

The government and EHRC have a legal responsibility to act and crack down on sexual harassment in the workplace. The main issues lie with employers, the tribunal system and the Equality Act 2010. Whether it be the unethical use of NDAs, the lack of procedures or restricting time limits; the existing system currently works against the victim rather than with them. Statutory modification needs to be made in order to solidify the seriousness of the issue, consequently creating a sense of intolerance towards the issue as well as holding employers accountable. Overall, the need for a watertight legal system concerning sexual harassment is becoming ever more present and it is clear that legal, as well as social measures, need to be implemented in order to change the approach and attitude towards the issue.

 

Bibliography

  1. ‘Sexual Harassment’ (org.uk, 2020) <https://www.citizensadvice.org.uk/law-and-courts/discrimination/what-are-the-different-types-of-discrimination/sexual-harassment/&gt; accessed 9 January 2020
  2. (parliament.uk, 2020) <https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/725.pdf&gt; accessed 12 January 2020
  3. Ms M Podlecka v MYM Global Ltd 3302831/2018
  4. ‘Sexual Harassment In The Workplace – Women And Equalities Committee – House Of Commons’ (parliament.uk, 2020) <https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/72505.htm#_idTextAnchor010&gt; accessed 9 January 2020
  5. ‘Equality Act 2010’ (gov.uk, 2020) <http://www.legislation.gov.uk/ukpga/2010/15/section/123&gt; accessed 9 January 2020
  6. ‘Tough Laws Called For To Stop Rise In Workplace Sex Cases’ (HeraldScotland, 2020) <https://www.heraldscotland.com/news/17422526.tough-laws-called-for-to-stop-rise-in-workplace-sex-cases/&gt; accessed 9 January 2020
  7. Ms J Prewett v Green King Services Ltd: 1800566/2019
  8. ‘Sexual Harassment In The Workplace – Women And Equalities Committee – House Of Commons’ (parliament.uk, 2020) <https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/72505.htm#_idTextAnchor010&gt; accessed 9 January 2020
  9. ‘Sexual Harassment In The Workplace – Women And Equalities Committee – House Of Commons’ (parliament.uk, 2020)
  10. ‘Sexual Harassment In The Workplace – Women And Equalities Committee – House Of Commons’ (parliament.uk, 2020) <https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/72505.htm&gt; accessed 9 January 2020
  11. ‘Equality Act 2010’ (gov.uk, 2020) <http://www.legislation.gov.uk/ukpga/2010/15/section/109&gt; accessed 11 January 2020
  12. ‘Tough Laws Called For To Stop Rise In Workplace Sex Cases’ (HeraldScotland, 2020) <https://www.heraldscotland.com/news/17422526.tough-laws-called-for-to-stop-rise-in-workplace-sex-cases/&gt; accessed 10 January 2020
  13. (org.uk, 2020) <https://www.tuc.org.uk/sites/default/files/2019-09/SHConsultation_TUCRepsonse.pdf&gt; accessed 10 January 2020

 

[1] ‘Sexual Harassment’ (Citizensadvice.org.uk, 2020) <https://www.citizensadvice.org.uk/law-and-courts/discrimination/what-are-the-different-types-of-discrimination/sexual-harassment/&gt; accessed 9 January 2020

[2] (Publications.parliament.uk, 2020) <https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/725.pdf&gt; accessed 12 January 2020

[3] Ms M Podlecka v MYM Global Ltd 3302831/2018

[4] ‘Sexual Harassment In The Workplace – Women And Equalities Committee – House Of Commons’ (Publications.parliament.uk, 2020) <https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/72505.htm#_idTextAnchor010&gt; accessed 9 January 2020

[5] ‘Equality Act 2010’ (Legislation.gov.uk, 2020) <http://www.legislation.gov.uk/ukpga/2010/15/section/123&gt; accessed 9 January 2020

[6] ‘Tough Laws Called For To Stop Rise In Workplace Sex Cases’ (HeraldScotland, 2020) <https://www.heraldscotland.com/news/17422526.tough-laws-called-for-to-stop-rise-in-workplace-sex-cases/&gt; accessed 9 January 2020

[7] Ms J Prewett v Green King Services Ltd: 1800566/2019

[8] ‘Sexual Harassment In The Workplace – Women And Equalities Committee – House Of Commons’ (Publications.parliament.uk, 2020) <https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/72505.htm#_idTextAnchor010&gt; accessed 9 January 2020

[9] ‘Sexual Harassment In The Workplace – Women And Equalities Committee – House Of Commons’ (Publications.parliament.uk, 2020)

[10] ‘Sexual Harassment In The Workplace – Women And Equalities Committee – House Of Commons’ (Publications.parliament.uk, 2020) <https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/72505.htm&gt; accessed 9 January 2020

[11] ‘Equality Act 2010’ (Legislation.gov.uk, 2020) <http://www.legislation.gov.uk/ukpga/2010/15/section/109&gt; accessed 11 January 2020

[12] ‘Tough Laws Called For To Stop Rise In Workplace Sex Cases’ (HeraldScotland, 2020) <https://www.heraldscotland.com/news/17422526.tough-laws-called-for-to-stop-rise-in-workplace-sex-cases/&gt; accessed 10 January 2020

[13] (Tuc.org.uk, 2020) <https://www.tuc.org.uk/sites/default/files/2019-09/SHConsultation_TUCRepsonse.pdf&gt; accessed 10 January 2020

 

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