Current law fails to go far enough to protect women and girls in the workplace. An Opinium survey suggests that more than 10 million people in the UK have experienced some form of sexual harassment in the workplace.
The workplace should be a safe place for women, not something to be feared. Clearly, it is imperative that the law changes to safeguard workers. People are being failed, and in these testing times such legislation is more important than ever.
Even for those who are not compelled by the moral reasoning behind increased protection from workplace harassment, it is difficult to ignore economic arguments. Disrespectful and abusive work practices lead to lower performance and productivity, and increased staff turnover. When looking at case studies, it is not hard to understand why.
The 2018 Presidents Club scandal highlighted the extent to which current law currently does not protect people. In that instance, businessmen allegedly sexually harassed young female hostesses at a notorious men-only dinner, being instructed to wear “black, sexy shoes” and black underwear. Those women, who faced violations of their dignity, would not have had recourse to the law as it stands.
Sexual harassment by third parties is a major problem in the UK. A 2017 survey suggested 18 per cent of those who experienced workplace sexual harassment said the perpetrators were clients or customers. Some 1.5 million people have been harassed by a third party, meaning that clients or customers were allowed to harass 1.5 million workers.
This being said, a TUC survey suggested 79 per cent of women do not report their experience of sexual harassment in the first place. This happens for many reasons, including fear of repercussions, lack of awareness regarding their rights, and fear of not being taken seriously. Those concerns are heightened for people of colour, people in the LGBT+ community, and people with disabilities, who already face greater discrimination in the workplace.
Barriers to reporting harassment
There needs to be a culture shift to encourage more people to come forward, so let us look at the barriers to speaking out. For one, it is not just third parties who harass people, with 20 per cent of surveyed women suggesting their direct manager or someone else with direct authority over them was the perpetrator. It therefore goes without saying that any reporting could have direct career implications for those involved.
The Equality and Human Rights Commission (EHRC) found that in nearly half of cases reported, the employer took no action, minimised the incident or placed the responsibility on the employee to avoid the harasser. It seems that the risks of reporting sexual harassment can outweigh the merits.
The problem is that the current laws on sexual harassment mean employers often adopt individual responses to institutional problems. That creates space for employers to minimise what is going on, and leads to confusion about how to respond appropriately. Statistics show only 45 per cent of managers felt supported by their organisation when reports were made to them. Ultimately, the current laws leave people who have encountered traumatic experiences unsupported. We can and must do better.
To make workplaces safer, we need a shift in focus from redress to prevention. The question of whether employers have taken adequate steps to prevent sexual harassment arises only as a defence if an incident of sexual harassment has already occurred. That means employers are not required to take actions that prevent sexual harassment. Indeed, the EHRC found in 2018 that only a minority of employers had effective processes in place to prevent and address sexual harassment.
My Worker Protection (Amendment of Equality Act 2010) Bill – which recently passed its Committee Stage in the House of Commons and is supported by the government – would provide the shift in focus so desperately needed.
Clause 2 would ensure that employers prioritise prevention by imposing a new duty on them to take ‘all reasonable steps’ to prevent their employees from experiencing workplace sexual harassment. That will not require employers to do anything substantially more than what they currently must do to avoid legal liability for acts of harassment carried out by their employees, but it would mean that employers could potentially be further held to account if they have failed to take those actions, first by an uplift in the compensation awarded at an employment tribunal, and secondly through the EHRC’s strategic enforcement.
The new duty would operate through dual enforcement. The EHRC may take enforcement action for a breach or suspected breach of the duty under its strategic enforcement policy. This means women could inform the EHRC of any concerns, without necessarily having to take legal action against their employer.
In addition, the employer’s duty will be enforceable by the employment tribunal in individual cases. Where the employment tribunal has found in favour of an individual claim of sexual harassment and has ordered compensation to be paid, the tribunal will examine whether and to what extent the duty has been breached.
Where a breach is found, tribunal judges will have the power to order an uplift of up to 25 per cent of the compensation awarded.
Explicit protection against third-party harassment
The Bill will also introduce explicit protections against third-party harassment in the workplace. Clause 1 would make employers liable for the harassment of their staff by third parties, such as customers and clients, where they have failed to take all responsible steps to prevent such harassment.
Individuals can bring claims to an employment tribunal in the usual way for work-related cases under the Equality Act 2010. The EHRC will have strategic enforcement powers. Compensation will be assessed in the usual way for Equality Act claims, with the same uplift outlined earlier available in cases where a breach of duty has also been established following a successful third-party sexual harassment case.
A claim for third-party harassment could be brought after a single incident of harassment. This replaces the previous ‘three strikes’ formulation, whereby employers needed to know of two previous incidents of third-party harassment before they could be considered liable, but employers can rely on the ‘all reasonable steps’ defence in the usual way.
Let me finish by turning away from the technical details of the Bill, and return to the wider circumstances that make it important for us to pass this legislation. An unacceptable number of nurses, paramedics, bar staff, key workers during the pandemic, and everyone in between, are being subject to harassment that causes various harms, including psychological, physical and economic harm. Employers should be required both morally and legally to take all reasonable steps to stop sexual harassment. The fact that the law of this country does not compel them to do so is a disgrace.
Introducing a standalone preventive duty for employers will shift the responsibility from individuals to the institution. It will prevent harassment and protect victims, and it will drive a change in the culture around victim blaming.
I hope the Report Stage of the Bill, scheduled for debate in the House of Commons on 3 February 2023, will get us one step closer to enshrining historic measures in law to protect employees from harassment and make the workplace a safer place.
Follow the progress of the Worker Protection (Amendment of Equality Act 2010) Bill 2022–23: bills.parliament.uk/bills/3205
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Wera Hobhouse is Liberal Democrat MP for Bath and Liberal Democrat Shadow Leader of the House of Commons, Transport Spokesperson, and Energy and Climate Change Spokesperson
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