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Sexual harassment, #MeToo and NDAs: change is coming

10/14/2019 12:00:00 AM

It has been two years since the #MeToo campaign became a worldwide movement.   The revelations of widespread harassment and the (mis)use of onerous confidentiality clauses created huge political pressure for strengthening the law in this area.  Despite the political uncertainty caused by Brexit, it appears likely that at least some of the proposals will make their way onto the statute books.  

At the same time, the media coverage is encouraging some staff to come forward with complaints (including historic allegations).  In most cases, employers will be vicariously liable for acts of harassment perpetrated by their employees. (Although employers can avoid liability if they took all reasonably practical steps to prevent such harassment, establishing this can be difficult.)

Employers therefore have every reason – legal, reputational, practical and moral – to get ahead of the game and make sure they are following best practice before the law is toughened up.  So what does that look like? 

The basics

Having a robust anti-harassment and anti-discrimination policy in place is essential, but not enough on its own.  The policy should be reviewed regularly and its effectiveness evaluated (preferably at Board level).   An anonymous staff survey might be a good way of obtaining some baseline data – e.g. are staff aware of the policy, do they know how to raise a complaint and are they confident that the business takes a zero tolerance approach?   Once you have a clear picture of the current position, you will be better placed to identify necessary improvements. 

It's also important to communicate clearly who is covered by these internal policies and what avenues are open to agency workers, freelancers or other non-employees who are subjected to harassment. Such individuals are often particularly vulnerable to harassment. If you employ workers aged under 18, they may require extra support when raising complaints and your procedures should reflect this.  

Training

Only by providing appropriate training can you be sure that employees understand what could constitute harassment or discrimination.  This shouldn't be just a box-ticking exercise; training should be mandatory and its importance emphasised to staff.  A five minute webinar followed by some desultory multiple choice questions is unlikely to be sufficient. For customer/client-facing businesses, training on how to respond to harassment by third parties is also invaluable.  Managers and those who will investigate and deal with complaints should also receive tailored training to ensure they can respond appropriately when allegations are made. 

Encouraging openness

Another key aspect is ensuring that complainants feel able to come forward.   Many businesses are adopting supportive practices such as a reporting hotline operated by a third party, tech solutions for collating evidence and reporting harassment, and training certain employees to be anti-harassment champions, so that victims can approach them confidentially to get support.   But perhaps the most valuable thing an employer can do is to ensure that retaliation against genuine complainants isn't tolerated.   Retaliation can take many forms, often subtle, such as lack of support for career progression and bonus awards, so it may be necessary to monitor this for some time after the investigation has concluded.

NDAs that aren't OTT

The (often ill-informed) media controversy over the use of confidentiality clauses in settlement agreements has obscured the fact that these remain standard practice and are often useful to both sides. Employers should ensure that their template agreements comply with current legal requirements, such as not preventing protected disclosures or reports to the police.  If the Government's proposals become law, clauses which do not meet these requirements will be void, so it's worth reviewing standard agreements now to ensure they are enforceable and reasonable.  

Tackling workplace harassment is a formidable task, but businesses which ensure their houses are in order now will be ahead of the curve when the new legislation is introduced.   

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