The introduction of a statutory code of practice on sexual harassment in the workplace has been announced by the government.
The code is designed to combat the ‘failure’ of employers to take preventative responsibilities seriously, but has attracted criticism for ignoring calls for sanctions to tackle non-compliance.
The government will work with the Equality and Human Rights Commission (EHRC) to develop a code that makes it clear ‘what actions an employer must take to fulfil their legal responsibilities’. Evidence of code violations will be eligible for use in legal proceedings and employment tribunals, the government said. It added that officials would monitor its use to determine whether further action was required.
The announcement follows recommendations by the Commons' Women and Equalities Select Committee to place a mandatory duty on employers to protect workers from harassment and bullying. The government also agreed with the Committee that non-disclosure agreements (NDAs) require better regulation and pledged to consult on this.
The commitments were welcomed by Women and Equalities Select Committee chair and MP Maria Miller. But she said the government had “missed the opportunity to place a greater onus on employers to protect workers from harassment and to increase sanctions for poor practice”.
She added: “Just keeping an eye on how employment tribunals respond to the new code is inadequate. The government is placing a lot of emphasis on awareness-raising among employers and employees as a means of tackling sexual harassment.”
Richard Miskella, partner at Lewis Silkin and lead on the investigation into Kevin Spacey's tenure at The Old Vic theatre, agreed that sanctions might have been helpful. But he caveated that these would have been “marginally helpful”, highlighting the need for more employer-driven rather than regulatory change.
“There are industries where regulators are really spooking employers – the financial services industry for example,” he told HR magazine. “But actually that’s not causing an electric shock of fear and culture change. People are just shopping around for legal advice that says ‘you wouldn’t get banned for that’. People are pretending to themselves that the big stick will never fall on them.”
The new code just generally may be of limited practical use in driving change in the face of deep-routed cultural and generational barriers, Miskella said: “This is more of an issue of a profound lack of understanding than people realise. We have managers in their fifties and sixties managing Millennials who don’t understand that the issues are as serious as they are.”
What’s needed isn’t more policy at company or regulatory level, but measures such as listening exercises and speak-up sessions where leaders are made to realise the business imperative of getting this right, he said.
Roger Steare, visiting professor of organisational ethics at Cass Business School, agreed that the code might be of limited practical use. He said that in his view matters of bullying, harassment and “coercive control” at work need to be regulated as stringently as physical health and safety.
“We have very strong physical health and safety regulations in the workplace, but completely insufficient regulations around psychological safety,” he told HR magazine, adding that coercive control at work should, in his view, be a criminal offence in line with that within a marriage or relationship.
Regarding the government’s pledge to consult on NDAs, Steare said that in his view their “only legitimate use… is to protect trade secrets and patents”. “Any HR or legal advisors who have colluded with use of NDAs to prevent crimes being reported to the police should be ashamed of themselves,” he said, adding the importance of protecting people from having to suffer abuse for fear of losing their jobs, “particularly now we’re heading for such poor economic circumstances” potentially.
Miskella added, however, that the new code would be helpful in keeping issues of workplace harassment and bullying firmly on the agenda, so that they don’t fall into the “shadows”: “I am optimistic that things will decisively change. It’s almost like economic change; you reach a tipping point… it’s a competitive need to be good at this stuff."
He added that he was heartened by this issue dominating his professional life over the past year: “What that means in practice is there are dozens of employers who have got out there and done stuff and started this conversation.”