Kingsley Napley employment partner Juliet Carp explains why not.
When something goes wrong there is often a clamour for new law. Sometimes that will help, but that does rather depend on what the problem is. The recent outcry over revelations of sexual harassment has largely come about because people chose to do things they should not have done, not because the law failed to tell them they were wrong to do them. There is some confusion over ‘harassment’ terminology but, at root, our current workplace equality laws are good laws. The problem rests with people’s behaviour and the problem needs be addressed by people.
There is already a broad statutory definition of sexual harassment in our key piece of workplace equality legislation, the Equality Act 2010 (summarised at the bottom of this article). The UK definition reflects international standards including an EU definition that we are obliged to conform to. This provides that harassment occurs ‘where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating hostile, degrading, humiliating or offensive environment’.
We are currently subject to European law and changing our UK harassment definition now is impractical, but it is worth bearing in mind that UK equality law largely pre-dates European requirements. These laws were not imposed by Europe on an unwilling UK and the Government has committed, politically, to maintaining EU equality standards post-Brexit.
Explaining how the employment harassment definition and discrimination laws apply in practice is the job of employers. Employers can be held responsible if their employees step out of line and it is in their financial and reputational interests to deal with problems as they arise – and, perhaps more importantly, to take steps to prevent them from happening in the first place. Most good employers regularly train employees on equality. This is a good way of both explaining the boundaries and reducing employer risk. Because the definition of harassment is broad, it can apply in a wide variety of ways, many of which are not currently ‘criminal’. Practical examples tailored to the workplace are usually easier to understand and apply. The blurry boundary of the definition is usually around less physical things. There is absolutely no doubt that sexual assault, rape, unwanted sexual touching, asking a colleague to have sex if they want a promotion etc are covered by UK workplace equality laws.
There is also plenty of good quality, free material already available online to UK employers and employees who are unsure about what to do. See, for example, www.acas.org.uk and www.equalityhumanrights.com/en.
Our current workplace equality laws are good and we should think carefully about how any changes might work through in practice. Some thoughts:
- Allegations of sexual harassment are not always upheld. In practice, the majority of complaints seem to be sincerely made but that does not mean that everyone who is accused of sexual harassment at work is guilty or that employers always make the right decisions.
- Being convicted of a crime is a very serious thing for anyone. The criminal standard of ‘innocent until proved guilty’ is important, as is the right to a fair trial. Questions of criminal liability should be left to Criminal Courts, not workplace grievance processes.
- Accusations of sexual harassment, even if untrue, carry stigma for the accused, and high risk for the complainant, who can be unfairly victimised by colleagues and management.
- Aligning criminal and employment law completely is not really practical because the laws have different purposes. This would, in practice, require some narrowing of the employment definition which (even if permitted by international law) would be a great loss. Frequent ‘lower level’ humiliation that might never satisfy a criminal ‘standard’ can still have a very serious impact on an employee’s ability to do their job, and on their health.
- Moving the boundaries of criminal liability may not have the intended effect. Changing the status quo to ensure that more workplace harassment is clearly defined as crime could potentially have the effect of reducing the number of complaints made and the ability of HR to address problems quickly.
Our workplace equality laws are something to be proud of. Let’s keep them. And let’s also avoid distracting from the real task of making sure that we all take practical steps to make things better.
See also earlier Kingsley Napley articles for ideas on what you can do to help, as an employer or individual:
UK Equality Act harassment definition
Under the UK Equality Act 2010, broadly*, a person harasses another if they engage in unwanted conduct
- related to a ‘protected characteristic’ (eg sex) and the conduct has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them;
- of a sexual nature, and the conduct has the above purpose or effect; or
- of a sexual nature (or that is related to gender reassignment or sex) and the conduct has the above purpose or effect and because of their rejection of or submission to the conduct they treat them less favourably.
In deciding whether conduct has the effect referred to above the following are taken into account: the perception of the ‘victim’, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.
The relevant ‘protected characteristics’ are age, disability, gender reassignment, race, religion or belief, sex or sexual orientation.
* Please refer to the precise statutory definition, currently at s26 of the Equality Act 2010, before taking any action