Sexual harassment: proposals for reform

In response, the House of Commons Women and Equalities Committee has recently published a report making recommendations for changes to the law and business practice in this area. If implemented, it would be the most thorough shake-up of the law on harassment for many years.

The report recommends various changes to the law on sexual harassment:

• employers should have a positive duty to take reasonable steps to protect workers from harassment and victimisation, accompanied by a statutory code of practice;
• Employment Tribunal damages for harassment should be uplifted by 25 per cent if the employer has breached the statutory code;
• employers should have a positive duty to protect staff from harassment by third parties (such as customers);
• volunteers and interns should be able to bring claims for sexual harassment;
• the time limit for bringing sexual harassment claims should be increased to six months (currently three);
• punitive damages should be available for sexual harassment;
• an employer which loses a discrimination claim involving harassment should usually pay the employee's legal costs; and
• the statutory questionnaire procedure (abolished in 2014) should be re-introduced.

In response to controversy about the use of non-disclosure agreements (NDAs) it also recommends tighter regulation of such agreements, including:

• businesses to be required to use standard, approved confidentiality clauses which include a clear, easily-understood explanation of their effect;
• disclosures of sexual harassment to the police and regulators should be treated as protected disclosures under whistleblowing law;
• it should be a criminal offence for an employer or their adviser to propose a confidentiality clause designed to prevent/ limit whistleblowing or disclosure of criminal offences; and
• it should be a disciplinary offence for lawyers to use inappropriate confidentiality clauses.

It may take some time before any changes to the law are made. But given the intense media interest in this area and the amplifying effect of social media, businesses should get their houses in order now. Ensuring that there are robust policies and training programmes in place, and that there is genuine buy-in throughout the business, is invaluable in managing the legal and reputational fallout from harassment claims.