Should the law on sexual harassment be changed to protect workers?


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Following recent harassment allegations it has been suggested the UK needs a cultural and legislative shift

The torrent of appalling sexual harassment allegations to hit the headlines recently has prompted both industry and government to sit up and listen.

Launching an inquiry into sexual harassment in the workplace last month, the government’s Women and Equalities Committee pledged to consider what changes are needed. As part of the inquiry the committee is inviting evidence from employers and individuals and will use the responses to help compile a report, due out later in the year.

The inquiry follows a one-off evidence session on 31 January, which heard heated debate from legal experts, employers and employee representatives who suggested a raft of legislative and cultural changes. Key proposals that emerged were around legal protection and employer practice.

The CIPD’s head of research and thought leadership Ksenia Zheltoukhova, who gave evidence at the session, called for better employer guidance on dealing with reported incidents and on improving culture and dynamics within organisations.

“Unwanted conduct should be something defined by the victim, not a witness,” she told HR magazine. “They were the person who experienced it so they should determine which way it is reported and progressed.” She added that it’s key employers increase women’s confidence to report incidents without fear of reprisal, humiliation or career impact – another area the report will examine.

Experts have also called for scrutiny of non-disclosure agreements (NDAs) and how to prevent the kind of misuse exposed by the Presidents’ Club scandal.

Zheltoukhova said though that NDAs could protect victims in some cases: “Is there a place for NDAs in this context? Sometimes the person who has experienced an incident may not actually want it to be made public and prefer to settle privately for fear of consequences.”

On the issue of tribunals, proposals have been made to improve access for victims by reducing legal costs (which are viewed as prohibitive), extending time limits for claims from three to more than six months, and reinstating employer tribunal questionnaires.

Key too is the call for the reintroduction of Section 40 of the 2010 Equality Act that puts a legal responsibility on employers to protect employees from ‘third party’ harassment; such as from guests, customers or contractors. This was repealed in October 2013.

In its sex discrimination law review, published the week before the Committee’s evidence session, the Fawcett Society recommended the reinstatement of Section 40, but that it be amended to require employer action after just one incident is reported (rather than two as the original legislation stipulated).

“It’s essential that the law is changed back to ensure that employers have to take reasonable steps to prevent harassment,” Fawcett Society head of policy and insight Jemima Olchawski told HR magazine.

“It’s hard to see why any decent employer wouldn’t want to immediately take steps to protect their employee if they knew that they had faced harassment while working. A single incident of harassment should be sufficient.”

There are proposals too for reinstating the statutory employer questionnaire, which allowed victims to gather information about previous similar incidents before lodging a claim. Mandatory workplace risk assessments and manager training have also been mooted.

Group HRD at SIG Linda Kennedy-McCarthy welcomed the inquiry. But she said that while more robust legislation is vital, the starting point is culture and leadership.

“It’s about creating a level of openness and making it part and parcel of the fabric of the organisation through instilling values and how you work,” she told HR magazine. “This is a leadership issue and I don’t know if enough is made of that. We talk about legal obligations and accessibility to grievance procedures but for me the key is how leaders set the tone in an organisation and HR has a big hand in supporting that and making it the culture.”

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