The Long Read: Part 2, Discrimination & Sexual Harassment in the Workplace

Nearly three years ago we brought you the following blog post. Serious Sexual Harassment and Discrimination in Shepway Workplaces.

Three years on we are still receiving emails from men and women  suffering sexual harassment and discrimination in the workplace. Some of them have told us about how they do identical jobs as men and get paid much less. But we know this as we wrote about this last year in April, pointing out the Holiday Extra’s was the most discriminatory company when it came to the gender pay gap in the District. We have had emails from employees there making it clear they are not happy, even though there has been a buy out and change in some senior personnel. Little, so we have been informed has changed.

However it is not just pay discrimination, more and more women write to us about sexual harassment in the workplace.

Many of the victims of sexual harassment have raised the issues with their line managers and aspersions have been cast by their accusers

• “They just want to make some money”,

• “It’s revenge as they didn’t get the job”,

• “Why are they coming forward now”.

It is strange to the Shepwayvox Team, that so many people who deal with sexual harassment cases in the workplace go there so fast with such comments, as this does not happen with other traumatic events. But with sexual harassment that is so often where the conversation immediately goes, with immediate concern less for the victim, and more for the accused.

The court of public opinion is far from the ideal place to address individual claims, but all too often it is necessary for the victim to go public as the process privately fails, it simply doesn’t work adequately.

You would think that an employee could go to HR, or senior management. But victims are reluctant to do so, because HR and senior management are there to protect the organisation from liability, not necessarily to see justice and fair play for the victim. On some occasions there is a huge power disparity between accused and accuser and there’ll be only one winner and we know who that might be.

In February 2018, the Women and Equalities Committee of the House of Commons launched an enquiry into sexual harassment in the workplace. The report does not make for comfortable reading. It notes that 40% of women and 18% of men have experienced unwanted sexual behaviour in the workplace.

It is known that Non-Disclosure Agreements (NDA’s) are used unethically by some employers and also some members of the legal profession to silence victims of sexual harassment, and there is insufficient oversight and regulation of their use.

An NDA is a contract that contains clauses that restrict what a signatory can say, or who they can tell, about something. These clauses are also known as confidentiality or gagging clauses.

The Parliamentary Women and Equalities Committee of the House of Commons heard evidence that NDAs are being widely used to silence victims of sexual harassment in the workplace and to prevent cases being brought into the public eye for fear of bad publicity. However, the confidential nature of these agreements makes it difficult to estimate out how many there are out there and to gauge how ethically they are being used. Barristers at 11KBW and Doughty Street Chambers summarised the main risks from unethical use of NDAs in silencing victims as being that individuals will not report serious wrongdoing to the police; will feel compelled not to assist with relevant law enforcement investigations or prosecutions; and will feel unable to speak openly and in the public interest about serious wrongdoing, thus inhibiting public awareness and debate.

Now if you ever are, or ever have been coerced to sign a NDA by an employer from preventing you disclosing sexual harassment have no fear as any NDA clause designed to prevent a worker from making a disclosure in the public interest—also known as whistleblowing or making a protected disclosure—would be void under section 43J of the Employment Rights Act 1996. However, an individual who has signed an NDA containing such a clause might not be aware that this part of the NDA could not be enforced if it was breached. Even if they suspected that it was not enforceable, they would probably need legal advice to work out whether they were entitled to protection under whistleblowing laws, which are set out in the Public Interest Disclosure Act 1998 (PIDA).

Under PIDA, protected disclosures include disclosures about malpractice, breaches of the law, miscarriages of justice, dangers to health, safety and the environment, or the cover-up of any such behaviour.

The use of non-disclosure agreements (NDAs) must be better controlled and regulated to ensure that they are not used unethically by lawyers in cases where sexual harassment is alleged, whether that be in a public authority or a private company.

In Dec 2018 the Government promised they will introduce a new Code of Practice so employers better understand their legal responsibilities to protect their staff as part of a package of commitments to tackle sexual harassment at work. Even though this is illegal it still persists and we fail to see what a Code of Practice will do, unless it is statutory.

The culture to eliminate such behaviour after so many years of trying, we find depressing, especially as similar techniques used to undermine victims of sexual harassment in the past are still in use today, such as

• Concerns over false allegations

• Blaming the victim

• Outright character assassination

There has not been enough progress in the three years since we last wrote about this subject.

The first step for both management and employees is awareness of the problem. The next is for organisation to develop workable and internal mechanisms to deal with sexual harassment and for those employees to change their behaviour which contribute to it. However, sentiments like this were being said in the 1980’s and nearly forty years on little has really changed for victims of sexual harassment in the workplace, so are we trapped in Groundhog day

Time was supposed to be up for such behaviour in the eighties, nineties, noughties and this current decade too. Will time be up any time soon for this despicable behaviour, who knows, we hope so. Awareness of the issue does not stop it and by the way there are NO innocent bystanders, seeing it and not saying anything in effect could make you a participant.

But as we said early part of the change needs to come from the law and there in lies a problem as the law around sexual harassment and discrimination relies on intent. 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.’

and find the intent in that.

Men do not need to fear being in the presence of a women or vice versa, because if there is no harassment there can be no fear. And we need to spend more time on addressing and fixing this issue, not just spending just enough time to feel like we have addressed it.

So we call upon all organisations in our district and beyond to openly publicise the policies they have on sexual harassment and set out a step by step guide, so that everyone knows in advance the process and their rights. We can also initiate bystander training, so that those who witness this kind of behaviour can be supportive of the victim and know that they can be supportive in the process.

We are optimistic that things can change from where they were in the 80, 90, noughties and our present decade. Things can change and you, whoever you are, wherever you are, can be part of that change.

Lets make it happen.

The Shepwayvox Team

Journalism for the people NOT the powerful

None of the above is intended as legal advice, nor should be relied upon as such. If you have suffered from any of the matters raised in this blog post, you should seek legal advice from a qualified legal professional.