The importance of tracking sexual harassment cases

With legislation currently progressing through Parliament which will introduce a new duty to take all reasonable steps to prevent the sexual harassment of employees, could small changes to employment tribunal (ET) claim forms help track improvements by starting to record sexual harassment cases as a separate claim?

It has been over five years since #MeToo began calling out sexual harassment across all of society, including the workplace.

Many initiatives were born out of this movement, including #TimesUp, and in August 2021 the UK’s Equality and Human Rights Commission (EHRC) stated that over the last few year it had focused on tackling harassment in the workplace, including sexual harassment.

Sexual harassment remains a problem and the workplace can create high-risk scenarios, particularly the Christmas period which often precedes a spike in harassment complaints. Yet the ET claim form categorises claims simply as unfair dismissal, discrimination, redundancy payment, other payments or “another type of claim”.

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Despite these claims being distinct from discrimination claims, and increasingly common there is no separate box for harassment or victimisation.

Ideally, when the Ministry of Justice produces its tribunal statistics each quarter they would underpin analysis on the prevalence of individual claims such as sexual harassment.

However, the statistics for sexual harassment are hidden among the broader 'sex discrimination' claims which encompasses all claims related to the protected characteristic of 'sex' as well as 'marriage and civil partnership' and 'gender reassignment'.

Such categorising renders impossible any meaningful analysis into the number of sexual harassment claims brought against employers.

This information would be helpful for employers, the EHRC and other organisations working to tackle sexual harassment in the workplace.

For example, in 2022, when most Christmas parties resumed without restrictions for the first time after the pandemic, one might expect an increase in sexual harassment claims versus 2020 and 2021.

However, with no statistics provided for sexual harassment claims, we are blind to the bigger picture. If we don’t measure data, we cannot make improvements.

The EHRC might also be able to track such data and use it where a high level of sexual harassment claims against a particular employer suggests cause for concern.

The EHRC can enter into legally binding agreements with employers, agreeing an action plan to address issues which may have led to unlawful conduct, such as discrimination or harassment.

This often involves training, ensuring policies and procedures are effective, and complaints such as sexual harassment are properly dealt with.

The Worker Protection (Amendment of the Equality Act 2010) Bill is currently in the House of Lords, and will come into force one year after it is passed. It will impose a duty on employers to prevent sexual harassment and re-introduce protection from harassment by third parties such as customers and suppliers.

Now would be an opportune time for the Courts and Tribunals Service to produce data on sexual harassment claims, starting by introducing a specific tick-box for those claims.

This data could then be used to track whether there is any difference in the number of claims before the legislation comes into force compared with afterwards.

While the ET claim form is a government document, employers themselves should monitor the levels of any ET claims they receive citing sexual harassment and ensure that it informs their strategy to implement the new duty to take all reasonable steps to prevent it.

Appropriate preventative steps are not defined, but in past cases ETs have looked for well-expressed and publicised policies, regular and workforce-wide training, and a tone from the top of zero tolerance.

A proactive approach will be particularly important for employers, not just because of a compensation uplift (maximum 25%) in successful sexual harassment claims, but because of separate EHRC enforcement powers, and, not least, the risk of reputational damage.

If, after five years, further legislation preventing workplace sexual harassment is still needed, it seems appropriate that the initial ET form should be also brought up to date, with a simple additional tick-box. If we don’t measure data, we cannot make improvements.

James England is associate at Eversheds Sutherland