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It is now nearly two years since the #MeToo movement gained global recognition, but barely a week goes by without a new study being released or a high-profile news story breaking about the issue of workplace harassment. Indeed, on 26 June, ‘This Is Not Working’- an alliance of more than 20 trade unions, charities and women’s rights organisations – launched a petition calling for a new law to force employers to prevent sexual harassment in their workplaces.

This latest research from the TUC found that 52% of women – and nearly seven out of 10 LGBT workers – have experienced sexual harassment at work. Perhaps more worryingly, 79% of women subjected to harassment do not feel able to report it to their employer.

The implication is that current laws are not an effective. To an extent, this is supported by the latest set of employment tribunal statistics which were published on 14 June. If you ignore the anomaly of 2,785 sex discrimination claims being lodged in Scotland during August 2018 (compared to just 18 in July), then the number of these cases increased from 5,552 in FY18 to 6,551 in FY19. Whilst that is an 18.6% increase, it is tracking significantly below the national average, which saw the total number of claims climb 26% year on year. Given the publicity around the issue, that dichotomy is hard to explain.

Clearly, only a tiny percentage of employees subjected to harassment feel able to bring legal action. As a result, the TUC want to shift the burden and create a new legal duty forcing employers to take preventative measures to ensure workplaces are free from harassment. This would be underpinned by a code of practice, explaining exactly what steps should be taken to prevent sexual harassment – including mandatory training and clear policies.

This reflects current best practice and most employers will be carrying out these steps already. Indeed, an employer can avoid liability in a harassment claim by demonstrating that that they took all reasonable steps to prevent harassment taking place. Reasonable steps will typically include having clear policies and training employees. However, anyone who has ever appeared before a tribunal and tried to argue the reasonable steps defence will know how difficult it is to rely upon. Training and policies do not tend to prevent harassment in and of themselves.

It is clear something needs to change as the status quo is not working. However, any changes need to be wide ranging and well-reasoned. The fear is that we will have a knee-jerk reaction, similar to the recent announcements in relation to non-disclosure agreements (NDAs).

In March, the Government declared it was looking at new measures to prevent the misuse of NDAs. These included a bar on any clause that would prevent someone reporting harassment to the police and a requirement to receive independent legal advice on the agreements. Anyone who has recently entered into settlement agreement will recognise instantly that the requirement to take legal advice has always been there and a settlement agreement cannot stop employees from blowing the whistle, which of course would include reporting harassment to the relevant authorities. The solution to the problems of NDAs largely existed already.

The solution to workplace harassment does not already exist, but the measures proposed by the TUC are already commonplace. No doubt codifying them into law would be a step in the right direction and I would expect these measures to be adopted in some form by the Government in due course.

However, the problem of sexual harassment is societal. The best and most inclusive workplaces have a culture where harassment of any kind is unthinkable. They go beyond paying lip service to policies and training. It is the creation and maintenance of that sort of culture which is the real key to defeating harassment.

James Tamm – Director of Legal Services – Ellis Whittam

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