Campaign group, This is Not Working, launch a petition to give further protection from harassment at work – by Karen Moss

An influential alliance of unions, charities and women’s rights group have campaigned this week to impose on employers a duty to prevent harassment in the workplace. On 26th June 2019 the petition was launched by the group called, This Is Not Working, including the Fawcett Society, Action Aid, Amnesty and Time’s Up UK. Their aim is the introduction of new legislation that would require employers to take preventative measures to stop sexual misconduct in the workplace. These would be outlined in a code of practice for employers, and will include mandatory training for staff and managers, and clear policies on the subject.

The Guardian reported on 26th June 2019, the Fawcett Society chief executive, Sam Smethers, saying: “We need to strengthen the law to better protect women from harassment from co-workers, clients or customers and we need a new duty on employers to prevent sexual harassment. They have to take responsibility for their own workplace culture. Everyone is entitled to dignity and respect at work. Sexual harassment has no place in any workplace.”

Employment lawyers know that employers can be vicariously liable under s.109(1) Equality Act 2010 for “anything done by a person in the course of his employment”, whether or not the acts are done with the employer’s knowledge (s.109(3)). The defence for employers contained at s.109(4) – that the employer “took all reasonable steps” to prevent the discriminator from discriminating – tends to be construed relatively narrowly in favour of the employee (see Mahood v Irish Centre Housing Ltd EAT 0228/10 and Fox v Ocean City Recruitment Ltd EAT 0035/11).

Although employers can already be legally liable if they fail to protect their staff from sexual harassment at work, it is right that there is no positive duty on employers to take steps to prevent harassment. It is relatively unusual, nowadays, to stumble across an employer without an Equal Opportunities Policy, but it is still surprisingly common for only those employees with Human Resources responsibility to have training in equal opportunities. Without training, an Equal Opportunities Policy can be undermined to the extent of rendering it worthless in practice.

Research carried out by the Trades Union Congress (TUC) found that more than half of women have been sexually harassed at work, as well as seven out of 10 LGBT workers. However, 79% of women don’t feel able to report incidents of sexual harassment to their employers, and a quarter of LGBT people said they did not report because they were afraid of being “outed” at work. One in eight women, according to the research, have experienced unwanted sexual touching or attempts to kiss them at work, while 28% have received comments of a sexual nature about their body or clothes in the workplace. A quarter of victims felt that they would not be taken seriously when reporting, and 15% thought it would have a negative impact on their career prospects. The Guardian report cited TUC general secretary, Frances O’Grady, as saying: “It’s shocking that in 2019 so many people experience sexual harassment and assault while at work. The government must strengthen the law to put responsibility for preventing harassment on employers. This would shift the burden of tackling sexual harassment away from individuals. And it would help end toxic workplace cultures that silence those who’ve been harassed.”

Within the next year, the government is set to launch a consultation on workplace sexual harassment, when they will consider introducing a duty on employers to take preventative action, as well as extending protections to interns and volunteers.

One can see the value in obligatory equality training but to prevent harassment in the workplace, the most productive training would not be limited to the executives who make the decisions, so the cost of effective training could be substantial. There is likely to be considerable pressure brought to bear on the government by employers who will protest that the cost would be prohibitive.

In many workplaces in this country the vacuum of equalities awareness can empower all levels of worker to engage in unwanted conduct which has the effect of creating a hostile environment for women and others with protected characteristics. It is always, currently, the responsibility of the victim to report the harassment, and understandably, they are often dissuaded from putting their heads above the parapet. Toxic workplaces have a considerably deleterious effect on the productivity of staff and, of course, increase the risk of costly litigation. Whatever the consultation and resulting legislation contains, it should strive to improve equalities awareness at work; this would assist employers to understand their obligations under the Equality Act 2010 and enhance the environments in which we all work.

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