The impact of the #Metoo and #Timesup campaigns has sparked an increasing number of complaints and Employment Tribunal claims on this side of the pond about allegations of sexual harassment in the work place.
This is a trend which looks set to continue - and which emphasises the need for even greater employer vigilance and compliance.
When assessing the financial and other implications for employers, it is important to remember that claims can be brought by any gender and sexual orientation. Damages are unlimited and, in contrast to “ordinary” unfair dismissal claims, regularly include awards for injury to feelings. These can be significant and are currently as much as £42,900 from April 2018.
Crucially there is no minimum qualifying period of service required before a claim can be brought – they can, and are, frequently instigated by short serving members of staff or even external job applicants.
Employers can defend themselves against such claims by demonstrating that they had taken all reasonable steps to prevent the harassment taking place.
This defence, however, requires far more than a written policy and depends upon the size of the business. Small, medium and large companies are advised to conduct workplace awareness training on sexual harassment with all their employees - as monitoring its effectiveness and providing additional assistance for staff in the workplace is a key element of an employer’s statutory defence. Freeing up time and resource to implement these provisions is a worthwhile investment compared to the potential financial and reputational risks.
There are likewise growing concerns that including non-disclosure or confidentiality provisions in confidentiality settlement agreements is forcing claimants to keep their sexual harassment allegations private, therefore allowing harassers to continue their misconduct.
It is not uncommon for an employer to secure the silence of a departing employee by giving them a sum of money in full and final settlement of any potential claims.
However, it is precisely these types of cases where ‘so called’ gagging clauses have been heavily criticised and even discredited.
In a sea change of attitude, while such clauses are still lawful, in circumstances where the claim is for sexual harassment, the general view is that care should be taken with the drafting to ensure that an individual is not prevented from being allowed to speak out in circumstances where there is a wider public interest.
Similarly, nothing should prevent them from making disclosures about the harassment allegations to regulators or the police. It is also important that potential victims should also feel able to speak to their therapist, counsellor or doctor.
Additional developments in this area are planned after a parliamentary committee’s inaugural report made a number of hard hitting recommendations. They included introducing a statutory code of practice which would be considered in evidence when determining whether employers who breach this code should incur additional penalties.
Another recommendation was to further increase the pool of potential claimants by increasing the current 3 month time limit for harassment claims to 6 months.
As the issue becomes increasingly prevalent, it is advisable for employers to take appropriate steps to protect their businesses and avoid severe financial and reputational repercussions.
Catherine Wilson specialises in all aspects of employment law with a particular emphasis on discrimination, whistleblowing, redundancies and senior executive severances. Her clients range across both private and public sectors and include manufacturing, logistics, retail businesses and inward investors.