Australia: Is it time for employers to change their approach? Respect@Work – the Australian Human Rights Commission’s (AHRC) workplace sexual harassment report

On 5 March 2020, the Australian Human Rights Commission (the Commission) released its long-awaited report on sexual harassment in Australian workplaces, “Respect@Work”. The report is the culmination of an 18-month inquiry, led by Sex Discrimination Commissioner Kate Jenkins. It is comprehensive and data-driven, and concludes (amongst other things) that the current legal framework is, in the Commissioner’s words, “simply no longer fit for purpose.”

What is abundantly clear from the report is the pervasiveness of sexual harassment in Australian workplaces, and the grave impact it has on victims. The Commission identifies gender inequality as the underlying condition for sexual harassment, and that sexual harassment occurs in all industries, but is most prevalent in industries which are male-dominated (for example, construction and mining industries), hierarchical (for example, the police, medical and legal professions) and those industries where workers are exposed to a high degree of contact with third parties (such as the retail, hospitality and health care sectors). The 2018 National Survey revealed that the industries with the highest rate of sexual harassment were the information, media and telecommunications, and the arts and recreation industries.

The report makes 55 recommendations. Some of these are aimed at the existing legal and regulatory framework; others are more holistic, directed at creating change outside the workplace, implementing research initiatives, and education and training for key players, including boards and industry regulators.

Of central focus in the report is the need for a paradigm shift in the way businesses approach workplace sexual harassment. The report criticises the reactionary nature of the existing legal regime, which, the Commissioner observes, places the burden on individuals to make sexual harassment complaints and discharges employers of vicarious liability provided they can show they have taken “reasonable steps” to prevent the harassment. A key theme which stands out from the report’s recommendations is the Commission’s desire to shift responsibility back onto employers to prevent the harassment in the first place. This aligns more with the current approach to the regulation of workplace health and safety (WHS) – a concept already familiar to most employers.

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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

Hong Kong: Proposed changes to discrimination laws

On 30 November 2018, legislation was gazetted which proposes various amendments to the Sex Discrimination Ordinance, Disability Discrimination Ordinance, Family Status Discrimination Ordinance and the Race Discrimination Ordinance. The proposed amendments reflect eight of the recommendations from the Equal Opportunities Commission Report on the Discrimination Law Review. Key changes include extending protections against discrimination on the ground of breastfeeding and extending protections against disability and racial harassment by customers.

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Australia: Workplace violence and red collar crime: Is it more threatening than you think?

Workplace violence is a significant and ongoing risk that employers should be alive to because it affects employee health, safety and wellbeing, which in turn impacts on productivity, absenteeism, sickness and replacement costs, to name a few.  In respect of the individual, it often causes physical or psychological injury and can even lead to death. In respect of the employer and industry more broadly, it can play out as an expensive scenario in terms of resources, money, time, good will, reputation and increased workers’ compensation and insurance premiums. Unfortunately however, the extent and prevalence of workplace violence in Australia is somewhat unknown. This is partly due to definitional ambiguities, the absence of national data being collected in this area and under-reporting. Continue reading

India: Maharashtra Adopts Model Shop and Establishments Legislation

By way of the Maharashtra Shops and Establishments Act, 2017, the state of Maharashtra has adopted the Central Government’s model legislation intended to increase the ease of doing business and boosting employment opportunities for women. The Act represents significant reform of the prevailing legislation and employers should take note of the changes to ensure compliance and to best utilise the flexibility afforded by the new regime.

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