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Education e-briefing - Latest developments on the issue of sexual harassment – Equality and Human Rights Commission set to investigate employers

  • United Kingdom
  • Education - Briefings

18-05-2018

Background

The issue of sexual harassment has been a high profile one now for well over 12 months with widespread local, national and international coverage across multiple sectors and jurisdictions. This has included copious discussion and analysis of the issue in the UK higher education sector.

In this briefing we look at the recent developments within the HE sector and beyond which will impact on how institutions mange sexual harassment complaints, with specific focus on the latest comments emerging from the Equality and Human Rights Commission (including a possible investigation into major employers) and the publicity around the use of non-disclosure agreements and confidentiality clauses

The Equality and Human Rights Commission

In the most recent development, the Equality and Human Rights Commission (EHRC) gave evidence before the Women and Equalities Committee enquiry into sexual harassment in the workplace on 16 May 2018. During this the EHRC was asked about the responses it had received to its letter to employers of 4 December 2017 (see below). The EHRC said it had written to some of the largest employers in the country, such as FTSE 100 companies and Russell Group universities. It said it would have expected such employers to have highly developed policies and procedures but the evidence that was presented to it was only of paper based compliance in too many cases, rather than evidence that such employers dealt with sexual harassment effectively.

For example, the EHRC said that in respect of victimisation one in six of the employers that responded had done nothing and, even in respect of those which had taken action, the EHRC’s view was that it was words in a policy rather than a rounded practice. Only employers who could be counted on the fingers of one hand had taken steps to train, evaluate the training, include steps in induction and tracked those who had raised complaints to check that they were not being victimised.

Later in the evidence session the EHRC said, in relation to sexual harassment at work, it was looking at 4 potential investigations under section 20 of the Equality Act 2006, in contrast to none in the previous year. Section 20 gives the EHRC power to conduct an investigation where it suspects that an employer has committed an unlawful act. The most recent such investigation (which concluded in 2016) was carried out by the Commission into alleged unlawful harassment, discrimination and victimisation of Metropolitan Police Service staff who made discrimination complaints.

Where, following an investigation, the EHRC concludes that an employer has committed an unlawful act, it may serve a notice on that employer requiring the preparation of an action plan in order to avoid the repetition or continuation of the unlawful act and may also recommend action to achieve those ends. If an employer does not comply with an action plan, the EHRC can apply to the county court in England and Wales or the sheriff court in Scotland for an order requiring the employer to comply. An employer will commit an offence if it fails, without reasonable excuse, to comply with an order made against it. This is punishable by a fine, not to mention the negative publicity.

The background to this is that on 4 December 2017 the EHRC announced that it had written to the Chairs of the FTSE 100 and other leading employers, including universities, asking them to supply evidence by 19 January 2018 of what safeguards they have in place to prevent sexual harassment, what steps they have taken to ensure all employees are able to report instances of harassment without fear of retribution and how they plan to prevent harassment in the future.

On 27 March 2018 the EHRC published “Turning the tables – Ending sexual harassment at work” based upon the evidence gathered from around 1,000 individuals and employers from December 2017 to February 2018. This included 750 responses from individuals to an online survey as well as 234 responses to the letter the EHRC had sent to employers on 4 December 2017.

The EHRC recommendations in the report include that the Government should:

• introduce a mandatory duty on employers to take reasonable steps to protect workers from harassment and victimisation in the workplace - breach of the mandatory duty would constitute an unlawful act under the Equality Act 2006 and therefore be enforceable by the Commission

• introduce a statutory code of practice on sexual harassment and harassment at work, specifying the steps that employers should take to prevent and respond to sexual harassment, and which can be considered in evidence when determining whether the mandatory duty has been breached

• develop an online tool which addresses the barriers identified in the EHRC report and facilitates the reporting of sexual harassment at work

In addition the EHRC recommended that employment tribunals should be given the power to apply an uplift to compensation in harassment claims of up to 25% for breach of the code; the period for bringing harassment claims should be extended to six months from the latest of the act of harassment, the last in a series of incidents of harassment, or the exhaustion of any internal complaints procedure and that employers should publish their sexual harassment policy and steps being taken to implement and evaluate it on their website.

Non-disclosure agreements and confidentiality clauses

Another area which has been in the media spotlight recently is that of non-disclosure agreements (NDAs) and confidentiality clauses. Technically speaking NDAs seek to prevent disclosure in advance of event taking place whereas confidentiality provisions are used after the event as part of settlement terms. In the current debate, however, the terms are often used interchangeably.

Whilst such clauses are void if the allegation amounts to a protected disclosure or seeks to prevent the disclosure of criminal activity (many but not all allegations of sexual harassment will fall into these categories) there are in any event concerns that NDA/confidentiality provisions may be used to try an deter individuals from speaking out (including about sexual harassment) even if not legally enforceable.

In its report “Turning the tables – Ending sexual harassment at work” the EHRC also made a number of recommendations concerning the use of NDAs and confidentiality clauses. These include that the Government introduces legislation making any contractual clause which prevents disclosure of future acts of discrimination, harassment or victimisation void and that the proposed statutory code of practice on sexual harassment and harassment at work should set out the circumstances in which confidentiality clauses preventing disclosure of past acts of harassment will be void and best practice in relation to the use of confidentiality clauses in settlement agreements. It is suggested this includes that the employer should:

• pay for the employee to receive independent legal advice on the terms of the agreement, including the reasonable costs of agreeing changes to the terms

• give the employee a reasonable amount of time to consider the terms of a settlement agreement before it will become effective

• allow the employee to be accompanied by a trade union representative or colleague when discussing the terms of a settlement agreement

• only use confidentiality clauses at the employee’s request, save in exceptional circumstances

• annexe a statement to the settlement agreement explaining why confidentiality clauses have been included and what their effect is

Finally, it recommends that the Government should ensure that all guidance on the use of settlement agreements in the public sector is updated to state that clauses should not be used to prevent disclosures of acts of sexual harassment.

As far as the HE sector is concerned, the NUS and 1752 Group report ”Power in the academy: staff sexual misconduct in UK higher education” (see below for more details) recommends that, in order to allow greater transparency and trust to build between students and the sector, new guidance should be provided by the Office for Students and Universities UK to prevent the use of NDAs in future settlements between universities and students.

The higher education context

There have also been some important recent publications specifically relating to the topic of sexual harassment within the HE sector. On 28 March 2018 Universities UK published “Changing the culture: one year on – An assessment of strategies to tackle sexual misconduct, hate crime and harassment affecting university students”. Amongst the key findings in the report are that:

• significant but highly variable progress appears to have been made across the HE sector in tackling student-to-student sexual misconduct

• most of those who participated in the study have reviewed and are in the process of enhancing their disciplinary processes and procedures

• to date, the majority of higher education providers have focussed predominantly on tackling student sexual misconduct

• there is far less evidence of new prevention and responsive strategies being developed to address staff-to-student sexual misconduct

• providers have concerns over their ability to deal with high volumes of disclosures being made where awareness raising and improved reporting mechanisms bring this about

As for the issue of staff to student harassment allegations, 3 April 2018 saw the publication of a report by the NUS and 1752 Group “Power in the academy: staff sexual misconduct in UK higher education”. This collated responses from an online survey of 1,839 current and former students in UK higher education between May 2017 and January 2018.

Amongst the findings are that 752 of the respondents (41%) had experienced at least one instance of sexualised behaviour from staff and fewer than one in ten of those who had experienced staff sexual misconduct reported the matter to their institution. Of those who did report, over half believed that their institution did not respond adequately to their complaint, half believed that the institution had denied their experience or made reporting difficult, while only one in four thought that their institution had taken proactive steps to prevent this type of experience

The report makes a number of recommendations including that:

• a member of senior management should take responsibility for making sure that the university is following its duties under the Equality Act

• policies need to take into account the power imbalance between staff and students and make clear that students will never be punished or retaliated against for reporting a sexual or romantic relationship with a staff member

• current reporting processes and disciplinary processes need urgent review

• institutions should implement a single point of contact, trained in responding to disclosures and investigations processes, for reporting staff sexual misconduct

• institutions should clarify their policies, reporting and investigation processes

• all students who teach, and all new academic staff, should also receive training on the staff-student relationship policy, reporting pathways, and guidance on professional boundaries with students as part of induction

Conclusion

Whilst the EHRC has not stated the identities of the 4 employers it is considering investigating, the Daily Telegraph has speculated that it could include employers in the education sector. Whether or not this is the case, it is clear that those in the sector are going to remain under scrutiny in respect of how they manage current and future allegations of sexual harassment.

Institutions will also be aware of the pro-active obligation they have to comply with the public sector equality duties set out in the Equality Act 2010. This specifically includes the requirement for higher education institutions, in the exercise of their functions, to have due regard to the need to eliminate unlawful discrimination, harassment, victimisation and other conduct prohibited by the Act. This will include assessing the effectiveness of policies (which term includes the institution’s practices, activities and individual decisions) in achieving the aim of eliminating harassment.

Dealing with allegations of sexual harassment can present significant challenges to institutions. Amongst the key issues which we advise institutions on are which procedures should be used and are they fit for purpose; who should investigate; is suspension appropriate; what effect does police involvement have on the process; what are the relevant data protection considerations and what is the appropriate standard of proof for taking action. A more detailed analysis of these issues is set out in the article on dealing with allegations of sexual harassment we published in our education magazine InStep which can be found here.

For more information on this topic  or how we can support you in managing sexual harassment complaints or complying with your public sector equality duties please contact:

For more information contact

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