Reinstate legal questionnaires, extend claim time limits and introduce third-party liability and risk assessments, experts suggest the current law on sexual harassment must be bolstered to better protect women in the workplace, experts have urged the government.
Part of the government’s inquiry, Sexual harassment of women and girls in public places, which launched earlier this month, the session queried the adequacy of the existing legislative framework and called for a new probe specifically into workplace protection.
The committee launched its sexual harassment inquiry earlier this month, and is expected to report on its findings later this year.
Christine Payne, general secretary of Equity, Ksenia Zheltoukhova, the CIPD’s head of research, and Clare Murray, founder of CM Murray, a specialist City employment law firm, all called for greater employment protections for women.
Key proposals included mandatory workplace risk assessments to safeguard against sexual harassment and manager training to change work cultures and encourage the reporting of harassment.
Murray said the high level of employment tribunal costs, compared to the relatively low value of sex harassment claim awards, had barred many victims from bringing claims.
Calling for more robust laws – to the same, strong level of protection parliament prepared for data usage and anti-money laundering law – Murray said: “I think we should place as much importance on protecting safety at work as we do on data protection.”
Businesses must undertake stringent procedures, proactive workplace risk assessments, train leaders, instill policies and face severe sanctions if they fail to comply, she added.
Neil Carberry, the CBI’s managing director of people and infrastructure, who was also on the panel, said he believed most employers regarded their duty of care as important but said it should extend to harassment to “create an environment where reporting is encouraged.
“There is much harassment and it is of deep concern to CBI members that harassment goes unreported. Underlying this is that business is still too male and that leaves corners where harassment can go on.”
There are significant shortcomings in the current legal framework, although it covers sexual harassment and offers remedies.
If a woman brings a sexual harassment complaint, the main remedy is compensation and a declaration. But unless a claimant leaves an organisation, the only remedy is an injury to feeling award – a “very modest amount”, said Murray.
Such awards peak at £42,000 and the lowest end drops to £800, Murray said. There are costs risks and no guarantee of recovering costs when bringing a claim.
“You don’t have to be legally represented but it is a really overwhelming thing to do if you lack it,” Murray said, querying how many women could afford adequate legal advice. Even then, a remedy is relatively modest if a worker has not lost her job or earnings.
“We should look at more robust remedies,” Murray proposed. She compared the British legal system to the US system, where, if an employer turned a blind eye to this behaviour, a tribunal could award punitive damages. At a federal level, these range between $15,000 and $50,000. At a state level, in New York for instance, punitive damages can be uncapped.
“Having that sort of sanction and potential remedy” would encourage victims to feel there is a meaningful remedy and would capture employers’ attention, Murray said.
The introduction of employment tribunal fees has had a significantly detrimental effect, she added. The average compensation award for a successful discrimination claim is £19,000, which was insufficient and made people reluctant to make claims as these were often difficult cases to bring or advance.
Payne proposed that the time limits for lodging a claim should be extended beyond three months to at least six months, and suggested the self-employed be included in the Equality Act definitions to broaden access to include more workers.
While the existing law may be interpreted by employers as ‘unwanted behaviour relating to gender’, Murray suggested that people should not be expected to claim on that basis.
Murray recommended the reinstatement of the statutory employer questionnaire, which previously allowed claimants to gather information from employers before bringing an employment claim. These “levelled the playing field” for victims in employment cases, she said. Used proportionally, it was an “incredibly important way” of establishing information required to decide whether to bring a case. The informal situation currently lacks a questionnaire, which means relevant information is unavailable.
When it came to informal, non-legal resolutions to sexual harassment complaints or claims, the victim’s perspective and not just the employer’s should be considered, Murray said. Asked how that would affect case law, she said that, if victims prefer to deal with matters in an informal way, they should be able to do so.
Zheltoukhova said that the CIPD had researched how to make organisations more diverse at senior management level, to change workplace culture and reduce harassment. To encourage employers to look at sexual harassment, greater accountability and reporting on diversity issues was needed. The CIPD contributed to a study on human capital reporting, including women and wider organisational culture issues.
Third-party liability was needed for Equity members, Payne said, as performance venues lacked a duty of care to ensure a safe environment was provided. The acting industry was variable, therefore workplaces varied; the perpetrators of sex harassment could be colleagues, visitors or guests. Members were rarely on permanent contracts, leading to a lack of proper reporting.
A law covering third-party harassment had previously been in force, but Murray described it as insufficient as it required two prior harassment incidents. One incident should be actionable, the panel said. Murray recommended reinstating third-party liability without the three strikes test. The CIPD agreed with this provided it focused on sexual harassment.
Asked if there was a reputational risk to the victim in bringing a claim, Murray agreed that many said it was too stressful to bring such claims and wanted to settle cases.
But when asked if people not bringing claims left perpetrators unexposed, Payne emphasised that ultimately it was up to the victim to decide what to do. The tribunal framework and law should be strengthened, rather than leave victims to take on such risks themselves.
By Miriam Kenner, People Management.