Sex discrimination, including sexual harassment, legislation has been a firm part of equalities law in the UK for several decades. Therefore, it's disappointing and worrying that 2016 TUC research shows more than half of women overall, and nearly two-thirds of women aged 18-24 years old, have experienced sexual harassment at work. However, these findings show that regulation alone - although very important in setting standards and providing a route for individuals to bring a claim for harassment - is not enough to stamp out discriminatory attitudes and behaviour towards women in the workplace. 
The Equality Act 2010 defines harassment as ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.’

CIPD viewpoint

We know from our research that the majority of employers have a positive approach to gender equality, but clearly there are still many organisations that are not fostering inclusive workplaces. If the working culture does not support gender equality and women, or men, are afraid to speak up and challenge inappropriate behaviour, this could have serious implications for the business. Any form of discrimination or harassment is totally unacceptable from a moral and legal standpoint – in society and at work. Also, many employers are likely to be losing valuable female talent by default if they do not treat complaints of harassment seriously and the culture is one where issues are pushed under the carpet. 
There are also serious consequences for organisations from a wider perspective. People who experience bullying or harassment are more likely to be depressed and anxious, less satisfied with their work, have a low opinion of their managers and senior managers, and want to leave their organisation. 
In terms of sexual harassment in relation to women, there are implications for how organisations attract and retain talent, for the female labour market and for women’s economic independence. Discrimination and harassment against women will also do nothing to alleviate the stubborn gender pay gap phenomenon and improve female representation at the top of organisations, which can contribute to innovation and business success. An organisation’s public image can be badly damaged when harassment incidents occur, particularly when they attract media attention. This can affect relationships between an employer and their current and future employees, as well as their customers.
Successive CIPD surveys have shown how much employers value talent and the importance they attach to fostering diversity and inclusion. This makes the serious gap in workplace diversity practices identified by the recent exposure of widespread sexual harassment all the more alarming.

How should organisations respond?

Organisations should treat any form of alleged harassment seriously, not just because of the legal implications and because it can lead to under-performance, but also because people have the right to be treated with dignity and respect at work. Any evidence of discriminatory behaviour or harassment among staff, whatever their gender, needs to be investigated and acted on swiftly and a clear message sent out that it will not be tolerated. Harassment can come in many different forms and is not necessarily overt – but even banter, jokes or unwanted attention based on gender difference can be harassment. 
Employers should establish a robust framework and policies to counter any potential harassment or discrimination against women, including unconscious bias, and these policies need to cover every aspect of employment including recruitment and selection, training, and promotion. There should be a clear process communicated to all staff about how to raise a complaint and to whom, so that everyone in the organisation understands how to raise any concerns and what steps will be taken. Line managers should be trained and confident in implementing the organisation’s policies and dealing with any concerns or complaints. They should also be competent to have open and sensitive conversations with individuals and manage conflict. 
Some complaints may be dealt with internally and informally, depending on their level of seriousness. In lower level cases it may be sufficient for the person experiencing the harassment to raise the issue with the perpetrator, pointing out the unacceptable behaviour. But if an employee finds this difficult or embarrassing, procedures should enable support from a colleague, an appropriate manager or someone from HR. If informal approaches don’t work, formal procedures should be triggered if the harassment is serious or persists, or if the individual prefers this approach.
Given their sensitive and potentially complex nature, organisations may wish to consider dealing with issues involving bullying and harassment under a separate procedure. There is an understandable lack of confidence on the part of many people experiencing or witnessing inappropriate behaviour, such as harassment or discrimination, to formally report it. Organisations may want to consider using more proactive and innovative reporting channels such as anonymous and/or confidential methods like telephone helplines run by third parties to provide support, and/or online reporting tools to report harassment.
Once organisations have developed clear processes on how to deal with harassment, the priority should be to follow them consistently. Fair processes need to be followed in a reliable way, without fail, both to give confidence to victims that their cases will be taken seriously and to ensure that anyone accused is treated fairly, according to due process. Every case should be investigated objectively and no concerns should be brushed under the carpet.
If a manager is the alleged source of the problem, employees need to feel they can turn to someone else in the business if they have been the victim of harassment or discrimination. HR has a vital role to play here, ensuring that all complaints are taken seriously and investigated in line with the law and the organisation's procedures. Fairness should underpin the process, and the organisation’s procedures should protect both the individual raising the issue and the individual against whom an allegation has been made.
Where a complaint is upheld, it may be necessary to relocate or transfer one of those involved to another part of the organisation. If appropriate, guidance and counselling can be offered to people whose behaviour is unacceptable, as well as those affected by the harassment. 
Employers should always make a record of complaints and investigations. These should include the names of the people involved, dates, the nature and frequency of incidents, action taken, follow-up and monitoring information. 

Use of non-disclosure agreements

There is a sharp focus on the use of non-disclosure agreements (NDAs) in cases of alleged harassment or discrimination, and a government consultation on the issue is expected in 2019. Settlement Agreements and NDAs are often referred to interchangeably and in many cases they do mean the same thing, however it is useful to understand the differences. 

A Settlement Agreement is the overarching term for a formal legal agreement whereby an individual receives (generally) a sum of money in consideration for agreeing not to bring any claims against their employer. The agreement is only enforceable if the individual has received independent advice on the agreement. Most settlement agreements, but not all, will have confidentiality provisions. If it does contain such provisions it is often referred to as an NDA. Acas has recently issued revised guidance on settlement agreements stating that confidentiality clauses should only be used when necessary and should not be included in settlement agreements as a matter of course.

From a legal perspective, the confidentiality obligations in a settlement agreement do not affect the employee's right to:

  • raise a protected disclosure under the Employment Rights Act 1996, or
  • report wrongdoing or malpractice to a regulator, or
  • report a criminal offence.

The Solicitors Regulation Authority has also issued a warning notice to solicitors stating that ‘while NDAs can be legitimate, they must not prevent anyone from notifying the SRA, or other regulators or law enforcement agencies, of conduct which might otherwise be reportable’.

Where there is alleged harassment or discrimination, HR has a responsibility to ensure that the confidentiality clauses in settlement agreements are used ethically and appropriately, and that employees are fully aware of the legal status of such an agreement, including their inability to bring a future claim to an employment tribunal. They should not be used to cover up cases of alleged discrimination and/or bullying, or to deter a person from reporting misconduct such as making a protected disclosure under whistleblowing legislation.

Prevention is better than cure

When dealing with harassment at work, prevention is better than cure. Engaging with employees on the issue and raising awareness of the company’s zero-tolerance policy for unacceptable behaviour are key to avoiding incidences of sexual harassment occurring in the first place. A workplace environment which values difference, is free from hostility and based on tolerance, will enable people to contribute more effectively and achieve higher levels of job satisfaction. People cannot make their best contribution if they are working in fear of harassment or bullying.
Organisations should monitor the gender diversity of its workforce at every level, including at recruitment, for succession planning and for recording the number of women who are making it into middle and senior level management roles. Through tracking this data, it should be possible to have a clear picture of whether or not there is any potential discrimination or harassment on grounds of gender. Staff attitude surveys are also a valuable way of gathering feedback from people on their perceptions in areas like gender equality. It's in the interest of employers to not only eradicate discrimination against women in the workplace, but to develop proactive strategies for progressing female talent, so that they can reap the many benefits from having a gender-diverse workforce. 
HR has a crucial role to play in helping to build a workplace culture that is inclusive, and fosters openness and transparency. The profession has a responsibility to ensure that any poor practices and behaviours that have led in the past to grievances and complaints do not continue.
Organisations should also strive to develop a culture in which harassment is known to be unacceptable and where individuals are confident enough to bring complaints without fear of ridicule or reprisal. Organisations should deal promptly, seriously and discreetly with any issues that are raised.
The first step to achieving this is to put in place a robust policy that clearly articulates the organisation’s commitment to promoting dignity and respect at work. Communicating the details of this policy is crucial, so that all individuals know their rights, what steps to take if they want to make a complaint, but also that they have a responsibility to behave in ways which support a non-hostile working environment for themselves and their colleagues. Induction is a good way of raising awareness and setting clear expectations of behaviour from the start of someone’s employment. These standards need to be reiterated and updated on a regular basis to build an inclusive culture that doesn’t tolerate any form of discrimination or harassment. 
Employees, and in particular line managers, should be encouraged to play their part in making the organisation’s policy a reality, and be prepared to challenge inappropriate behaviour and take action if they observe or have evidence that someone is being harassed. 
Alongside policies, employers should promote the importance of respect between employees at every level of the organisation, encouraging a supportive and inclusive culture so that people's behaviour reflects the right values. Senior leaders need to take a visible lead on the issue and set the tone for fostering a working environment where people feel empowered to speak up. They also need to be seen to take swift and robust action where needed, and deal appropriately with any criticism that could be focused on issues relating to leadership and trust. Senior leaders and line managers need to consistently role model and champion these behaviours so that people feel secure and can get on with their work without worry or fear of recrimination should they raise any concerns. 

Further resources