Following the Women and Equalities Committee report into sexual harassment in the workplace – which found the government, regulators and employers all failing to tackle the issue of sexual harassment in the workplace – Protect asks is the government taking enough action?
The government have pledged to bring in a Code of practice on sexual harassment for employers and look into options to better regulate NDAs, including introducing a standard clause explaining the limits of the agreement in plain English.
Also proposed is extending the list of prescribed persons for whistleblowers to include the Equality and Human Rights Commission (EHRC). This gives a new route for whistleblowers to raise concerns about sexual harassment with an organisation with some enforcement rights, and we support the extension. The Government are also considering whether the Police should be included in the list – an interesting idea, but we’d argue that if the Police are to be prescribed, their remit shouldn’t be limited to concerns about sexual harassment alone.
However, despite the government’s claim that “the employment protections for whistleblowers can already cover disclosures of workplace sexual harassment”, we need to be clear that this is no simple remedy to the widespread problems identified by the #Metoo campaign. When an individual suffers sexual harassment in the workplace, their usual remedy is through the internal grievance process. To fall within the protection of the Public Interest Disclosure Act (PIDA), the individual raising a concern has to have a reasonable belief that the employer is breaching a legal obligation and that the disclosure is in the public interest. It may seem self-evident that telling an external organisation – such as the EHRC – that sexual harassment has occurred should be a protected act – but it isn’t. The law was changed to include the public interest test to stop individuals using PIDA to raise concerns about their own employment rights. This may not be straightforward and will rest on the number of people effected, the seriousness of the harassment, who the harasser is and how seriously the individual is affected. While it is likely the test will have a broad application it is an additional hurdle for victims that does not exist in the Equality Act. If the test is not met, a private grievance followed by an individual claim to the tribunal is still their only employment remedy.
But what of the new Code of Practice – surely that will make a difference? Again, we welcome the proposal to introduce a statutory code, to give a strong steer to employers about what they should be doing to prevent sexual harassment in the workplace. However, this should adequately consider how to support and encourage whistleblowers who speak up on behalf of victims. But without an enforcement mechanism, it remains with the individual to complain if the Code isn’t followed. The government have proposed a wait-and-see approach to how tribunals respond to the Code – which isn’t likely to make bad employers tremble. Even the threat of an uplift in a tribunal award for failure to prevent sexual harassment pales into insignificance when contrasted with the fines employers might face for breaching, say, GDPR requirements. Sadly, the government haven’t agreed with the Committee’s recommendation of a mandatory duty on employers to prevent harassment – a breach of which could lead to enforcement action by EHRC. It is disappointing that the good practice in some sectors making whistleblowing arrangements mandatory – such as in Financial Services – haven’t been followed here.
On the plus side we look forward to contributing to a number of the proposals that the government has accepted: the need for a wider public information campaign about legal rights, a review of the protection for volunteers and interns, and a consultation on the much misunderstood use of Non Disclosure Agreements .