Dealing with sexual harassment in the workplace

The UK Government has issued a response to the consultation on sexual harassment in the workplace, stating that as soon as Parliamentary time allows, it intends to introduce:

  • a specific duty requiring employers to prevent sexual harassment, in order to encourage employers to take positive proactive steps to make the workplace safer for everyone;
  • explicit protections relating to third-party harassment; and
  • an extension of the time limit to bring a claim under the Equality Act 2010 from 3 months to 6 months.

#MeToo

Since the #MeToo movement began, organisations are responding to allegations of sexual harassment and related misconduct in a more proactive and robust manner.

Increasingly, employers are giving more immediate and serious consideration to sexual harassment allegations and recognising the need for formal investigations to be carried out.

Whilst many investigations are conducted on a privileged basis, we have also seen an increase in open investigations, with organisations taking care to ensure they are seen to be dealing with allegations openly and transparently.

Regulators are also approaching allegations of sexual harassment or related misconduct in a more proactive way and there is an increased focus by regulators on the way in which allegations are dealt with by organisations.

Added to this, we have also seen an increase in the number of allegations being reported to the police and the need to manage internal investigations in parallel with potential criminal investigations.

More broadly, whistleblowing has continued to receive significant attention with the EU Whistleblowing Directive, passed at the end of 2019, leading to a heightened focus on the way in which whistleblowers and their complaints are managed.

How should businesses respond to the increased focus on investigating sexual harassment allegations? 

We anticipate that the trends we have seen over the last couple of years are likely to continue. Businesses should be prepared for employees to call out harassment or other inappropriate behaviour and be prepared to deal with complaints in an appropriate manner while considering the broader cultural and regulatory developments of the last few years.

Businesses should expect regulators to take allegations of misconduct seriously and also draw lessons from a number of high-profile investigations and disciplinary proceedings taken by regulators in response to such complaints.

What is the response of those who are subjected to sexual harassment investigations?

Those who are subjected to investigations are also becoming more keenly aware of the potential consequences if complaints are found to be substantiated. As a result, these individuals are increasingly taking independent legal advice at an early stage.

What impact has the COVID-19 pandemic had on incidences of workplace sexual harassment?

The COVID-19 pandemic has seen many employees working from home rather than in the office. While this has reduced the scope for personal interactions that could lead to complaints, the pandemic has also raised the risk of online harassment, with online interactions receiving less scrutiny and a blurring of lines between home and the workplace. Some employees are working under increased pressure due to the pandemic and this has certainly contributed to the number of complaints being made. It has also been necessary to carry out investigations remotely and this has led to a need to adapt to new ways of working.

How have recent regulatory changes affecting the use of non-disclosure agreements? 

One area that has seen significant regulatory change, as well as political and media interest, is the use of non-disclosure agreements (NDAs) in settlement agreements when complaints of sexual harassment or discrimination are settled.

The Solicitors Regulation Authority has issued an updated warning notice to solicitors in relation to NDAs, with the key points being that NDAs should not prevent individuals from raising complaints to regulators or prosecuting authorities, or from participating in criminal investigations.

In addition, the Equality and Human Rights Commission has issued guidance on the use of confidentiality agreements in discrimination cases. This is an area in which the UK Government is likely to legislate in due course.

In conclusion

The developments we have seen in the UK largely reflect similar developments in the US. High-profile cases and the litigation environment in the US have perhaps been even more significant than in the UK. The environment in the US also informs the approach of global businesses seeking to implement a common approach in the jurisdictions in which they operate.

Feel free to contact us for legal advice if you are also faced with a situation at work that involves sexual harassment.

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