Tag: harassment

Employment Espresso Pods: Don’t you know that you’re toxic?

Don’t you know that you’re toxic? How to spot a toxic culture in the workplace

We are introducing a new mini-series within our Employment Espresso pods looking at how to respond to and how to prevent sexual harassment and sexual abuse in the workplace. In our first episode we look at toxic culture in the workplace. How to spot it and what are the consequences of ignoring it?

Speakers:

Please contact any of our speakers if you would like to discuss this podcast and any of the issues discussed:

Anna Law
Anna Law
Senior Associate, Employment, London
+44 20 7466 2567
David Palmer
David Palmer
Senior Associate, Employment, London
+44 20 7466 3846
Lydia Carrington
Lydia Carrington
Trainee Solicitor, Employment, London
+44 20 7466 3002

UK: government response to consultation on sexual harassment reforms and ill-health proposals

Sexual harassment in the workplace

The Government has just published a  response to its 2019 consultation on possible measures to address sexual harassment in the workplace.  This confirms that it will:

  • introduce a positive duty on employers to take all reasonable steps to prevent harassment in the workplace,  the scope of which would be clarified by a statutory code of practice;
  • introduce employer liability for third-party harassment subject to a reasonable steps defence;
  • closely look at extending the three-month time limit for bringing (all types of) discrimination and harassment claims to six months.

The new proactive duty is a reformulation of the existing law, where an employer is liable if an incident of sexual harassment occurs and it has failed to take all reasonable steps to prevent it.  Although it mirrors the existing requirement to take all reasonable steps, it means that the employer could potentially be held to account through enforcement action by the Equality and Human Rights Commission (EHRC) without the need for an incident to have occurred.  Individual claims will still require an incident to have taken place.  The Government will consider further what would be appropriate compensation.

The Government will “support the EHRC” in developing the new statutory code of practice, which “will complement” the EHRC’s technical guidance published in January 2020 (discussed here).  Additional guidance on practical steps will also be published.

Further consideration will be given as to whether liability for third party harassment will apply only if an incident has occurred.  Although not mentioned, hopefully specific guidance on what amounts to reasonable steps in relation to third parties will also be published, given the scope for significant differences in the likelihood of third party harassment in different employment contexts, and the potential relevance of the type of third party (from corporate client engaging in repeat business to one-off interaction with Joe Public) to what steps are reasonable.

It is unclear whether the new proactive duty and third party liability will apply in respect of all the protected characteristics in the Equality Act, although this was suggested in the original consultation paper.

The response confirms that the Government will not make any changes in relation to protection for interns (most of whom it believes are already covered as ‘workers’) or volunteers, nor does it intend to reinstate the employment tribunal power to make wider recommendations to employers who lose a discrimination claim.  Equally, suggestions to require the publication or reporting of sexual harassment policies and/or the number of harassment complaints, or for a naming and shaming mechanism, have not found favour.

Changes will be introduced when parliamentary time allows (and indeed we are still waiting for promised legislation on NDAs).  In the meantime, it would be prudent for employers to review the steps suggested in the EHRC’s January 2020 technical guidance, which is likely to form the basis for the statutory code in due course.  Some of these steps will also be relevant to third party harassment; additional steps might include workplace notices, contractual clauses requiring third parties to have given appropriate training to any relevant staff, and/or specific training for managers to ensure complaints about third parties are dealt with appropriately.

Ill-health proposals / national disability strategy

The Government’s consultation, Health is everyone’s business: proposals to reduce ill health-related job loss, also in 2019, proposed a new right for employees to request workplace modifications on health grounds (in addition to the duty to make reasonable adjustments for disabled employees), measures to improve access to occupational health services and reforms to the statutory sick pay system, including to allow SSP to be paid on a pro rata basis during an employee’s phased return to work after sickness absence, removing the concept of qualifying days and removing the lower earnings limit for eligibility (see here).

The Government has now published its response.  It is not going to proceed with the ‘right to request workplace modifications’ (in light of concerns that it might undermine the duty to make reasonable adjustments) and has decided that now is not the right time to make changes to the SSP system (although further consideration will be given to the SSP proposals).

Instead the Government proposes better-integrated health and disability-related information and advice for employers, improving the guidance on returning to work post-coronavirus, improving awareness and advice on sickness absence, and improving access to Occupational Health (including testing a new subsidy to improve access in SMEs). The Health and Safety Executive is to work with other bodies to develop non-statutory guidance to support disabled people and people with long-term health conditions to remain in work, and on managing any related sickness absence, before then exploring the introduction of statutory guidance.  Flexible working may also help those with health conditions and the response reiterates that a consultation on making flexible working the default, unless an employer has good reasons not to, will be published in due course.  The fit note regime will also be improved, including proposals for an interactive digital version and a wider range of healthcare professionals eligible to sign.

A Health and Disability Green Paper has also been published for consultation here. This includes a discussion of plans to improve employment support for disabled people, for example by improving Access to Work, developing an Access to Work Passport setting out the needs of a disabled individual, and encouraging employer sign-up to the Disability Confident scheme.  A White Paper following up on responses received is expected mid-2022.  These initiatives are also noted in the Government’s new National Disability Strategy which seeks to remove barriers faced by disabled people in all aspects of their lives, including work and business. A new online advice hub for employers, run by BEIS in conjunction with Acas, has been made available here.  The Strategy also states that by the end of 2021 it will have launched consultations on workforce disability reporting (including voluntary and mandatory reporting of disability status, but not the disability pay gap) by businesses with at least 250 employees and on making flexible working the default, and will set out the next steps to introducing up to one week of unpaid carers’ leave.

Anna Henderson
Anna Henderson
Professional Support Consultant, Employment, London
+44 20 7466 2819

UK: new EHRC guidance on harassment at work

New technical guidance on sexual harassment and harassment at work has been published by the Equalities and Human Rights Commission.  It is anticipated that at some point the guidance will become a statutory code of practice, which would mean that tribunals would be obliged to take it into account in relevant cases;  before then, tribunals will not be obliged to do so but claimants are still likely to refer to it in evidence.  Employers should review their equal opportunities/harassment policies and processes in light of the guidance, particularly once it is given statutory status, as significant updates are likely to be required.

The guidance sets out and discusses the law on harassment and victimisation and, in section 5, includes over 20 sides of advice to employers on taking steps to prevent and respond to harassment.  These will be relevant where an employer seeks to establish the defence that it has taken all reasonable steps to prevent harassment or victimisation by its workers, for which it would otherwise be vicariously liable.

The EHRC also published a separate short guide for employers setting out seven key steps:
• develop an effective anti-harassment policy
• engage staff with regular one-to-ones and have an open door policy
• assess and mitigate risks in the workplace
• consider using a reporting system that allows workers to raise an issue anonymously or in name
• train staff on what sexual harassment in the workplace looks like, what to do if workers experience it and how to handle complaints
• act immediately when a harassment complaint is made
• treat harassment by a third-party just as seriously as that by a colleague.

Key points to note in the technical guidance include:

  • employers should have different policies to deal with sexual harassment and harassment related to protected characteristics, or have one policy that clearly distinguishes between the different forms of harassment;
  • employers should consider preparing separate strategy documents setting out what measures will be taken to tackle the different forms of harassment, taking into account the differing causes and risks of occurrence;
  • policies and other measures should be developed in consultation with recognised trade unions or other worker representatives;
  • detailed requirements for a good anti-harassment policy include making clear that disciplinary action could be taken in respect of conduct at work-related socials, on social media, or unconnected with work where relevant to suitability to carry out the role; it should also note that aggravating factors such as abuse of power will be taken into account and should include clear examples relevant to the employer’s workplace to illustrate each type of harassment;
  • other policies and procedures should be reviewed to ensure consistency and appropriate culture, including disciplinary, IT, dress codes, performance objectives (for example, performance objectives should expect that managers deal appropriately with harassment complaints);
  • employers should consider publishing their policies on an easily accessible part of their external-facing website – this is suggested both as a means of ensuring sick employees/ non-employee workers can access the policy and to demonstrate the employer’s commitment to transparency and tackling the issue;  if not publicised externally they should be as freely available as possible to all workers, for example published on an intranet or a hard copy given to everyone, and policies should be shared with entities that supply workers;  staff should also be reminded of the policy at appropriate times;
  • policies should be reviewed annually and their effectiveness evaluated, for example by keeping a central record of complaints at a level of detail that allows trends to be analysed (subject to data protection safeguards) and comparing this with data from staff surveys, lessons-learned sessions, and exit interviews to identify if there is a gap between the actual level and reporting of harassment;
  • employers should be proactive in identifying warning signs that harassment may be occurring and provide every opportunity for workers to raise issues, including considering the introduction of an online or externally run telephone reporting system permitting anonymous or named complaints;  this should enable an employer to take action to address a matter, even where there may not be sufficient evidence to start an investigation due to the anonymity of the complainant (for example, this action could be issuing a reminder of the policy to workers and monitoring the area of the business affected);
  • in addition to workplace-relevant training for all workers and managers, some workers should be specifically trained in providing support to complainants;
  • employers should carry out risk assessments for harassment and victimisation which might take into account factors such as power imbalances, job insecurity, lone working, the presence of alcohol, customer-facing duties, local or national events raising tensions, lack of diversity, and secondment of workers;
  • employers using agency staff should agree with the agency in writing the allocation of responsibilities for handling complaints, including updating each other and providing clear guidance to the worker;
  • employers should consider what action can be taken to reduce power imbalances by, for example, taking steps to reduce feelings of isolation, addressing under-representation of workers, ensuring that decision-making at senior levels is more representative of different groups, and providing sufficient support for workers at all levels;
  • employers should consider extending the statutory right to a companion to cover meetings to investigate a harassment complaint and allowing persons other than colleagues or trade union representatives as a companion; complaint investigators should have appropriate expertise and avoid inappropriate lines of questioning;
  • the guidance discusses when to override a complainant’s request not to take action;
  • the guidance suggests that complainants should be informed of the outcome of action against an alleged harasser and that data protection concerns should not prevent this if the employer makes its policy clear (this advice should be treated with caution, particularly prior to the guidance becoming a statutory code).

Of course what is reasonable in terms of the ‘reasonable steps defence’ will depend on the circumstances, including the size and nature of the employer, the resources available to it and the risk factors which need to be addressed within the particular employer or sector. Employers should consider what steps they have taken to date and what further steps it is practicable for them to take.  This should be regularly reviewed, considering issues such as whether there have been any changes in the workplace or the workforce and the availability of new technology such as new reporting systems.

The Government Equalities Office has also launched a survey of 12,200 people to gather data on the prevalence of sexual harassment and ensure government policies focus on the right areas identified by victims. The Government consulted on possible reforms in this area last year and is due to provide its response this spring.

Anna Henderson
Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK: Government publishes further response on NDA proposals

The Government has published its fuller response to the Women and Equalities Committee report on the use of NDAs.  Largely the response restates the legislative proposals set out in August (see here).  it also sets out an intention to consult on a possible statutory requirement to provide basic factual references and confirms that the proposal to require monitoring and reporting on maternity retention rates is being ‘carefully considered’.  See the response here.

Anna Henderson
Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK: EHRC publish new best practice guidance on use of confidentiality agreements (or “NDAs”) in discrimination cases

The Equality and Human Rights Commission has this week published new Guidance on the use of confidentiality agreements in discrimination cases.  The Guidance is non-statutory and much of its content is expressed to be ‘good practice’ rather than setting out legal requirements.  Key recommendations include that in most cases employers should not use confidentiality agreements to stop a worker discussing an act of discrimination, that employers should pay for a worker to receive independent advice (including covering the adviser negotiating changes to the agreement if necessary) even if the worker ultimately chooses not to sign, and that the use of a confidentiality agreement should be signed off by a director or appropriate delegated senior manager. Continue reading

UK: further developments promised on ‘NDAs’ and sexual harassment law

The Government has confirmed that it is going ahead with its proposals to regulate confidentiality clauses in settlement agreements and employment contracts, largely as set out in its March consultation. The consultation response confirms that, “when Parliamentary time allows”, the Government intends to:

  • legislate to ensure that a confidentiality clause cannot prevent an individual disclosing to the police, or to regulated health and care professionals or legal professionals (who are themselves covered by duties of confidentiality);
  • require that the limitations of a confidentiality clause are clearly set out in the clause (in settlement agreements) or in the written statement of particulars (where included in an employment contract), using clear, plain English and specific wording about what information cannot be shared and with whom. The Government does not intend to prescribe a particular form of wording, or require there to be agreement on acceptable wording that the employee can use in job interviews or conversations with colleagues, family and friends, but it will produce guidance on the drafting requirements.
  • legislate to require an individual signing a settlement agreement to receive independent legal advice specifically on the nature and limitations of the confidentiality clauses.

Breach of the drafting requirements will render the confidentiality clause in a settlement agreement void in its entirety (without voiding the whole agreement). A failure to provide a compliant written statement of employment particulars could lead to a declaration and potentially additional compensation of 2 or 4 weeks’ pay (subject to the statutory cap for a week’s pay) if the individual brings a successful tribunal claim. The new enforcement arrangements will not apply retrospectively.

These changes do not take up all of the recommendations made by the Work and Equalities Select Committee (see here) and the Government has promised to respond more fully to those recommendations in due course. However, the Government is consulting further on possible interventions through the GEO consultation on sexual harassment in the workplace ending on 2 October 2019. This seeks views on a number of specific proposals including the introduction of a duty on employers to take all reasonable steps to prevent harassment in the workplace (the scope of which would be clarified by a statutory code of practice), employer liability for third-party harassment subject to a reasonable steps defence, an extension of the three-month time limit for bringing discrimination and harassment claims to six months, and protection for volunteers and interns. Any changes will apply to all forms of harassment.

Suggested possible enforcement measures in relation to the proposed new duty to take reasonable steps to prevent harassment include investigation and enforcement action by the Equalities and Human Rights Commission, enforcement by individuals either as a standalone claim or contingent on a harassment claim, financial penalties (perhaps mirroring the remedy for failure to inform and consult on a TUPE transfer of 13 weeks’ gross pay), and obligations to publish or report on prevention and resolution policies and/or the number of harassment complaints.

Meanwhile, a report of the Women and Equalities Committee published on 30 July 2019 strongly criticised the EHRC’s failure to use its enforcement powers more proactively to tackle institutional and systemic discrimination, and its reliance on individuals bringing their own tribunal claims once discrimination has occurred. In particular, the Committee urged the Commission to support a ‘critical mass’ of cases (rather than just those that create legal precedent) and to partner with regulators, inspectorates and ombudsmen to increase enforcement action in their sectors.

Anna Henderson
Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819