Sexual Harassment in the Workplace
The House of Commons report on Sexual Harassment in the Workplace published on 18 July 2018 is a valuable exposition of an endemic problem. It concisely records the pernicious pervasiveness of unacceptable conduct to which mainly women but men too are subjected as well as the significant challenges targets of harassment face in securing a remedy.
The report covers a lot of ground and makes a number of welcome recommendations. Here, I will highlight three areas in particular.
First, a long standing lacuna in the statutory protection against discrimination afforded by the Equalities Act 2010 is that volunteers (which would include an intern) are not protected at all. It is difficult to conceive of any persuasive justification for this. Why should two people working alongside each other, one an employee and the other a volunteer, not have the same protection?
The omission is stark when you consider that many volunteers will be working in the charity sector and so in organisations which are often committed to the care and support of common targets of discrimination (though of course their own record has come under intense scrutiny recently).
Volunteers may themselves be particularly vulnerable. Their experiences commonly lead to them trying to help others in the same situation but a volunteer in a charity for victims of sexual harassment is not herself protected from harassment by the Equality Act. I know of a young disabled man whose confidence was shattered when, because of his disability, he was asked to stop volunteering at a charity shop which professed to support others with the same disability.
Interns are usually young and inexperienced trying to get a foothold in competitive professions. The scope for abuse is obvious but those at risk have no statutory protection.
Secondly, the report highlights the very short time limit for bring an Employment Tribunal claim for harassment. The statutory time limit is three months less a day from the act of harassment (or the last act where there has been a series). If the claim is presented after that time it may only proceed if the Tribunal considers it is ‘just and equitable’ which may be difficult to establish.
This time limit is postponed for the mandatory ACAS Early Conciliation procedure but takes no account of time spent in any internal grievance procedures. As these can often take months (or even years in some cases) time can run out before the target knows there will be no satisfactory internal outcome.
Finally, the report rightly highlighted the huge inequality of arms in terms of costs. Employment Tribunals were conceived as relatively informal tribunals dealing with straightforward matters without the need for lawyers. As such, the general rule is that costs are not recovered by either side whatever the outcome.
However, the reality is that legal advice and representation is hugely desirable. The law around discrimination is both technical and complex. Employers faced with claims will inevitably appoint lawyers to defend their position. So an unrepresented claimant risks being at a huge disadvantage.
While the default position avoids claimants generally not facing huge liabilities if they lose, it also means they must fund their own cases knowing they are unlikely to be reimbursed if they win. Given the relatively low level of awards for discrimination (few will exceed £15,000 or so) it may well cost more to bring the claim than the amount which is awarded.
The recommendation that costs should normally be reimbursed if a claimant shows there has been harassment (or other discrimination) is to be commended; it is similar to the position which pertains in personal injury claims and is a sensible way of levelling the playing field.
One option only briefly mentioned in the report is use of the Protection from Harassment Act 1997. This prohibits harassment generally so a claim for sexual harassment in the workplace would fall within its parameters.
The wider application of the Act means it protects volunteers and covers non-discriminatory harassment too. The time limit for a claim is 6 years (24 times that of a Tribunal claim) and, as the claim is brought in court, costs will normally be recovered and, if the target has suffered psychiatric injury, will be protected against liability for the employer’s costs.