Employment Law Focus: Sexual harassment at work

The Me Too campaign has led to an increase in awareness of sexual harassment. In this first episode of our new podcast we find out how this is evolving, as well as questions about banter culture, social media, US-style love contracts and more...

The Me Too campaign has led to an increase in awareness of sexual harassment at work with companies needing to respond appropriately. In this first episode, Jonathan Rennie, Siobhan Fitzgerald and Fraser Vandal look at:

  • how companies are responding;
  • how evidence is assessed at trial including emotional impact and banter;
  • the impact of social media on claims and investigations;
  • and vicarious liability for employers and the importance of training.

We look at forward-thinking initiatives from the US like the legal obligation to provide training and the use of 'love contracts' or 'relationship contracts', and whether these are likely to be used in the UK.

NDAs or 'gagging clauses' as they're often known are often misunderstood due to the way they're reported in the media – we look at what an NDA is and whether they're likely to be further regulated in the future.

We also cover the latest news, including what we can learn from the UK's gender pay gap reporting data (including for millennials) and how this regulation might evolve, including the likelihood of sanctions.

Send us your questions and we'll answer them in the next episode – email emplawpodcast@tlt.com or tweet us using the hashtag #TLTemploymentpodcast and tagging @TLT_Employment

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Jonathan Rennie: Hi, and welcome to this episode of TLT's Employment Law podcast. I'm Jonathan Rennie, a partner and member of TLT's UK-wide Employment Team and I'm joined today by my colleague Siobhan Fitzgerald, a partner in our Bristol office.

Siobhan F.: Hello there.

Jonathan Rennie: And Fraser Vandal, a solicitor in our growing Glasgow team.

Fraser Vandal: Hi there.

Jonathan Rennie: This podcast is our chance to help you spot the issues that are most important or challenging to get right, and it's also an opportunity to share some useful insights and expert advice from across our team.

Jonathan Rennie: In this episode, we're going to take a quick canter through a roundup of the latest news stories and explain how these issues are shaping the future of employment law. We're going to discuss the biggest issues we feel HR and legal teams should be prioritizing in the year ahead, and today our core focus will be on the Me Too movement and harassment in the workplace. And we'll look at the legal implications, but also how employers should deal with these issues in practice.

Jonathan Rennie: We will also be answering some of your questions and providing quickfire responses from our team. If you'd like to send us in your own questions, please email us emplawpodcast@tlt.com, or you can tweet us using the hashtag TLTemploymentpodcast and tagging @TLT_employment. We won't announce who sent us in the questions, but we'll try to answer every single one in the show.

Jonathan Rennie: So without further ado, let's take a look at the latest headlines. And I wonder, Fraser, what's been happening in the employment news?
Fraser Vandal: Thanks, Jonathan. Well, obviously as we move towards April there's the inevitable round of employment law changes that tend to happen around this time of the year. Some of the most notable ones this year include the right for workers to be given an itemized payslip, and that right would previously only be available to employees.

Fraser Vandal: Another key change is that the penalty for aggravated breaches of employment law is going to increase from 5,000 to 20,000 pounds in England and Wales.

Fraser Vandal: To be honest, the idea of aggravated breaches isn't something that I personally have come across too much in tribunal situations. I don't know about either of you, but what's your view on why that might be the case?

Jonathan Rennie: I think aggravated breaches are often introduced into employment tribunal proceedings for the purposes of settlement negotiations. There's often a little bit of a tactical type approach that a claimant might take. But of course, aggravated breach isn't defined in the statute, so we're all trying to get a little bit used to it at the moment. But as I say, it's mostly a tactical approach and hopefully an area which we get a little bit more clarification as the case law develops.

Siobhan F.: Yeah, I agree. It's just a bit of extra pressure on the employer, I think, to up the settlement sum.

Fraser Vandal: Yeah. As well as the aggravated damages issue, there's also the usual changes to the various rates and limits that apply in the employment and HR context. National living wage is going to go up from 7 pound 83, to 8 pound 21 per hour, and all the other age-specific minimum wage bands are going to go up as well. If you're listening and you're unfortunate enough to find yourself on the receiving end of an employment tribunal award for unfair dismissal, the maximum compensatory award is going to increase by 3,000 pounds.

Fraser Vandal: And if you'd rather go down the settlement agreement route rather than end up in tribunal, it's important to bear in mind that for settlement payments over 30,000 pounds, any amount over that 30,000 pounds figure will now be subject to employer National Insurance Contributions.
Jonathan Rennie: I think I'm right in saying, Fraser, then, the compensatory award is now the lower of one year salary or the statutory cap. Can you just remind us what the statutory cap is, then?

Fraser Vandal: Yeah. The new statutory cap from the 6th of April is going to be 86,444 pounds.

Jonathan Rennie: So in the grand scheme of things, the April changes this year are fairly minor compared to the fairly significant changes that we have seen in previous years.

Jonathan Rennie: In all likelihood, this will no doubt be because the government has had bigger issues to deal with in recent times. Speaking of Brexit, we're receiving a number of queries from clients as to how they should be preparing. And I think, Fraser, this is a matter where you're up to speed with the current state of play today.

Fraser Vandal: Yeah, absolutely. You know, as we are recording here on the 21st of March, matters are unfortunately still quite a bit more uncertain than we'd ideally like at this stage. From a people perspective, an HR perspective, the government has been fairly clear about what will happen if we leave on the 29th of March with no deal. The area that we are slightly less sure of, at the minute, is how any delay to the process, either a delay followed by a deal or a delay followed by no deal, will impact the various key dates and the EU settlement scheme that's going to be rolled out to ensure individuals can safeguard their rates in the UK, post Brexit.

Fraser Vandal: So far from ideal at this late stage, but hopefully in the next episode of the podcast we'll be able to provide a bit more definitive news.

Jonathan Rennie: Excellent. Thanks for that.

Fraser Vandal: So we're going to look at the Me Too area in a moment, but just before that, the final sort of development from this month. Gender pay gap reporting this month sees the deadline for the second round of reports and a number of businesses have already submitted their reports with varying degrees of success in narrowing the pay gap. Some of the larger organisations that have reported already have actually seen an increase in their pay gap figure.

Fraser Vandal: A number of theories behind this. One of them being that in order to address gender imbalance in the workforce, more females have been recruited into junior roles and because of the lower salaries this has perhaps skewed the figures slightly. Various statistics and various analysis of the figures submitted so far, and the good news is that the gap, in general, appears to be narrowing, albeit maybe not as quick as we would like. Siobhan, how are you finding our clients are dealing with the gender pay gap reporting process?

Siobhan F.: Thanks, Fraser. Yeah, I think the first year of reporting has revealed there's plenty of work for organisations to do in narrowing the pay gap and addressing the imbalance that's in place.

Siobhan F.: So if you look at the statistics from the ONS, which is the Office of National Statistics, they've recorded the average pay gap for employees last year is 17.9%. That's obviously the headline figure, but if you drill down into it, it's actually very interesting. Millennials appear to be leading the charge and the pay gap's actually very small for those who are under 40. If you particularly look at the 30 to 39 age range, the gender pay gap is virtually negligible. But then if you look for older people, that changes. So the 50 to 59 age group where women earn up to 15.5% less than men.

Siobhan F.: What we want to ensure is that as those millennials move through the career ladder, that they bring that very low gender pay gap with them. I think preparations for reporting are ramping up, obviously. And as Fraser said, we're recording on the 21st of March, and if you look at last year, over half of employers reported in the week coming up to the 4th of April, which is the reporting date. So we're expecting quite a lot of last-minute reports.

Siobhan F.: One of the big problems with this is that change is going to take time and the reporting is always looking backwards up to a year. So if you think the 5th of April this year, which will be the snapshot date for when employers have to take data, that will be the report for next year, so i.e. for 2020. So this sometimes can feel a bit frustrating with figures not changing quickly, but it's not a reason not to do it.

Siobhan F.: And Fraser, as you mentioned, there's a number of employers who are in the unfortunate position of their gender pay gap having gone backwards. Ofsted, the education watchdog, is one of those who's reported already and last year their median hourly pay gap was 2.3%, which is obviously pretty good. This year it's gone up to 19.8, so certainly businesses on the smaller side could find that if they just had a number, maybe a couple of female employees at the senior end who left, for example, probably for very legitimate reasons, but that will affect their statistics.

Fraser Vandal: Yeah, I think it probably important in that respect. The narrative that goes along with that reporting is going to be quite important because, you know, obviously two to 19% doesn't look brilliant, but if you can explain it in that way, then presumably that will take the heat off any address of criticism that could come their way.

Jonathan Rennie: I have definitely seen some sectors such as construction and infrastructure companies engaging in positive recruitment exercises in the last year, particularly on social media, looking at female graduate recruitment into engineering and promoting these issues with the obvious intention of getting more females into these type of roles and endeavouring to reduce the gender pay gap. So there are some companies that are very visible in this, that are doing initiatives throughout the course of the year, and there are others that seem to just simply be doing the reporting. And I guess over time, companies will need to do more than just reporting to demonstrate actually how they're trying to reduce the gap.

Fraser Vandal: Yeah, and I suppose that begs the question of how effective the current regulations actually are. There's currently no sanction for not reporting, it's purely reputational risk, essentially. How do you see that developing as we move forward and hopefully as the pay gap starts to get narrower across all sectors?
Siobhan F.: Yeah, I think last year the Equality and Human Rights Commission decided that they were going to take action against those who A) hadn't reported when they should have done, or B) companies that had produced statistics that were just very improbable or very unlikely. I think some people had gone in and just put zeros against everything, just to generate a report rather than actually, genuinely running the statistics.

Siobhan F.: But the Equality and Human Rights Commission has come under a bit of criticism because they haven't really done anything. They've looked into this, they've written letters to employers, but they haven't issued any fines. There's a bit of criticism around about the fact that it really just doesn't have teeth, but my feeling is that for employers in practice, you've really got to comply because A) reputational damage in your sector if you don't, and B) I think there'll be increasing pressure from employees themselves if you were an employer who wasn't going to produce the stats.

Jonathan Rennie: Yeah. I think if we're looking at the gender pay gap and we're talking about that being a snapshot of current employees, you will have people that are going through recruitment processes at the time and some of them will look at that gender pay gap and will actually challenge employers even at the recruitment stage as to why there is such a gap and what they're doing to change it. So if we're talking about millennials, for example, it seems that they have a real focus on this and that may of itself drive change, particularly where there's a war on talent and the best people who have many job opportunities might actually differentiate based on the gender pay gap. So something that organisations need to be very focused on if they want to recruit and retain the best people.

Jonathan Rennie: Of course, the news has been absolutely dominated in recent times with the Me Too movement and the implications that that has for workplace cultures, policies, procedures, how people feel about their work, and also, obviously, the legal and the reputational risks that can arise when things go wrong. We're talking specifically about sexual harassment. We've seen this in the retail sector, particularly coming under scrutiny in the wake of the founder of Ted Baker stepping down after various cuddling allegations and Sir Philip Green's retail empire has been threatened with various lurid allegations around his personal conduct.

Jonathan Rennie: This is not a sector-specific issue, though. It is one that's impacting many organisations across the world. Aside from the personal impact these harassment allegations will have on the particularly affected employees, obviously other stakeholders and shareholders are going to be negatively impacted as well. The issue of sex harassment has an increased focus in corporate governance and compliance and I suspect the movement is leading to a more proactive approach to these matters rather than a reactive one. I wonder if, Siobhan, if you could tell us a little bit about the legal protections in the Equality Act that protect against sex discrimination and harassment in the workplace.

Siobhan F.: Yeah, no problem. Obviously, the main form of sex discrimination that's relevant in the Me Too sense is going to be sexual harassment. Our listeners are going to be familiar with the legal definition of harassment, which is there's got to be unwanted conduct which is related to sex that has the purpose or effect of violating the person's dignity or creating an intimidating, hostile environment for them. It's important to remember that the circumstances of the case are relevant and the tribunal would also have to take a view as to whether it's reasonable for the conduct to have that effect.

Jonathan Rennie: Yeah. I think as lawyers we have a tendency often to default into that language of saying cases are fact-specific or complex, but in this area you're going to have an emotional dimension here and an emotional impact, and that can sometimes be very difficult to determine or analyse in an investigation, but it's something that we have to be very mindful of. I tend to find whether there is that emotional impact that there can be an assessment or a judgment made that why did a person react in a particular way, and we all have a sense of these matters. But in engaging in investigation we really have to meticulously analyse and assess the individual person's response to these claims.

Siobhan F.: Yeah, and I think the other thing is that the evidence is often quite "he said, she said," so it comes down to who's going to be believed and who's going to be a more credible witness. And you know, that can be the case for the investigator looking at it, but also for the employment tribunal. So if this case gets all the way to tribunal, you're going to be sitting in the witness stand with the panel in front of you and you have to persuade them that one side of the evidence is right or the other. And I think that's why sometimes there can be an increased risk going to tribunal because you don't quite know who the tribunal panel is going to believe.

Jonathan Rennie: Definitely. I think one of the things to think about here is the fact that in a straight unfair dismissal claim, there is simply a judge who is determining the case, whereas in a discrimination case, including sexual harassment cases, there's going to be a judge and two lay members. And so you can find yourself in a situation where the legal interpretation might be lending itself to one finding, whereas the lay members may look at it in a different perspective.

Siobhan F.: Yes, that's right. And obviously the two lay members can outvote the judge. So, in theory, they could make the finding that meant the claim is successful.

Jonathan Rennie: I certainly remember the days when we were looking at discrimination cases at work and it used to be said that discrimination was a bit of a smoking gun issue, meaning that there is often a lack of evidence and as you say, Siobhan, more and more of a sort of, "he said, she said," or "she said, he said," whichever way around it would be. But do you find in your day-to-day work that social media is having more of an impact in discrimination cases?

Fraser Vandal: Yeah, I think it definitely is. I mean, I've dealt with cases fairly recently where someone complained about sexual harassment and turned up with 100, 150 pages of Facebook messages, and it wouldn't be the first time I've seen WhatsApp conversations produced as part of investigation processes. So, from that stage there's obviously still the argument to be had about whether the conduct meets the definition in the Equality Act about sexual harassment. But from an evidential perspective, it certainly tends to shed a bit more light on the nuances of what went on and takes it away from being a "he said, she said" type situation if it's down there in writing.

Siobhan F.: Yes, it can always be quite surprising what people are prepared to put in writing, and maybe they didn't automatically think that something you quickly type into your phone could be used as evidence in the employment tribunal, and which of course it can.

Siobhan F.: I think that one of the tricky areas in harassment cases, as well, is the extent to which someone can be legally harassed if they have also engaged in some sort of so-called banter with the other party. And you might have heard about this. There's been a very recent case on this in 2018. It wasn't actually sex discrimination, it was race and disability harassment that was alleged, but the tribunal was entitled to find that calling the claimant "a fat, ginger pikey" was not harassment in those circumstances because the individual was deemed to have been an active participant in the banter culture and therefore it wasn't reasonable that the comments that were made to him were truly harassing, because he was very much engaged in the whole thing.

Siobhan F.: And I think that comes up quite regularly with our clients who are concerned about, okay, yes, some arguably inappropriate comments have been made, but the person has been giving as good as they get, so to speak. And I think that it is easier to run that banter defence when you have people at the same level in an organisation. I think it is more difficult where you have a senior person and a junior person, because often the junior person can perhaps join in a little bit because they're fearful of losing their job or the repercussions they might have for them in the work place. So I think it's a bit more tricky to make out in those situations.

Jonathan Rennie: Yeah. I've always found that when we're looking at the Equality Act term of "unwanted conduct" that it can be a tricky matter and looked at from different viewpoints, I suppose. So I particularly remember the Munchkins restaurant case, which neatly outlined the scenario where female staff put up with abusive behaviour for a variety of reasons and even, at times, participated in those types of conversations as a form of coping mechanism. But the tribunal found that that does not, of itself, make the behaviour wanted. So that's the kind of issue or the tension that we're faced with when we look at that particular Equality Act term. I wonder then, is that sufficient for an employer to simply accept that position?

Siobhan F.: It's tricky, but I think employment lawyers and HR professionals probably have to just treat the complaint seriously and if the person is saying it's unwanted conduct, I think that is your starting point. I think it's also important to remember that this harassment or these harassment issues are not exclusive to female employees. So there's obviously been male employees who have raised complaints against female managers or colleagues as well.

Jonathan Rennie: Yeah, it's been interesting following the Me Too movement and the fact that there now is an equivalent male campaign, if you like, drawing attention to that, because of course, we all have protector characteristics and the nature of the Equality Act is that it doesn't favour females over males when it comes to this particular point. In fact, I saw recently in the last few weeks that there's been a group of white male advertising executives who have accused their agency of discrimination after being made redundant amid what they described as a diversity drive. And that's the JWT Thompson case in London, where the male people that have been made redundant say that a female boss vowed to challenge its boys club culture. So there is a rebalancing, if you like, in the discussions around Me Too, or certainly there are scenarios where men are raising these issues as well. Do you have a view, Siobhan, as to whether other such male cases may be in the pipeline?

Siobhan F.: I expect there will be others similar to this and men are protected by the Equality Act just as equally as women, and I think organisations need to be mindful of that. So when you're addressing compliance and you're looking at training, you need to make sure that you're not solely focusing on it being all one way. And that case that you mentioned is quite a salient reminder that employers must be careful not to go too far the other way.

Jonathan Rennie: And I guess in this field we also sometimes hear about subconscious bias or subconscious discrimination. And I guess, therefore, there might be a subconscious tendency to assume that this is an area where men are harassing women without realising the potential for it to happen the other way around. So a lot to discuss in this area and some very interesting online resources that we can look at, and obviously TLT has publications particularly focused in this area.

Fraser Vandal: Yeah. And I think part of the problem, as well... I say problem, part of the reason why there are probably less male claims, particularly in the sexual harassment area, is that for a long time, people have probably thought that the traditional view is that men wouldn't speak up if they were being harassed in that way. The idea would be that, you know, just carry on through. And there's been a lot in the press recently about speaking out about issues like that. And I think that probably is a factor as to why there maybe hasn't been more male cases before now.

Siobhan F.: Yes.

Jonathan Rennie: Taking a step back a second and looking at it more broadly. Under the Equality Act, anything done by an employee in the course of their employment is also treated as having been done by the employer as well. And a lot of these cases, what you tend to find is one individual acting in an inappropriate manner. They've taken it upon themselves to do that, and obviously that liability could be imported onto the business. So from that perspective, Siobhan, is there anything that businesses can do to disassociate themselves from being legally responsible for that type of conduct?

Siobhan F.: Yeah, I think as you mention, organisations and employers are generally what's called "vicariously liable" for the acts of their employees when they're committed in the course of employment. Obviously, if this harassment is going on within a work context, that will probably be in the course of employment. But there is a defence that an employer can run in an employment tribunal claim under the Equality Act to say that they have carried out all reasonable steps to prevent such harassment taking place. And if you can convince a tribunal that you have done that, you have a chance of being able to almost step away from your employee and say that you're not liable in those circumstances.

Jonathan Rennie: Yeah, I've always thought with that, that might be an easier defence to run for a smaller organisation, maybe an owner-managed business where there's a small number of staff and they can show training as compared to maybe a large financial institution where we know that training might be by webinar, it might be by Skype, or whatever. I think for smaller organisations, the reasonable steps defence is one that might have greater prospects of success, but you wouldn't want to be relying upon that defence.

Siobhan F.: Yeah, I think it's a high bar. There's no doubt you would have to be doing very regular training. It's not enough that sometime, once, in 1993 that someone was given some training on the Equality Act. I think that it's something you'd have to be showing a very regular training program with quite in-depth training, perhaps tailored to individuals' roles. But it certainly is something that employers could seek to rely on.

Siobhan F.: And I suppose the other thing to mention, actually, for discrimination cases, is that an individual can bring a claim not only against the employer but also against an individual directly. And that's often a tactic used by claimant's solicitors. So let's say, for example, it was the managing director that was alleged to have done the harassing, then if that claim's brought against him personally, that increases the embarrassment effect and the potential reputational damage, and probably personal concerns that he might have about that coming out, and that can increase pressure to settle a case.

Fraser Vandal: Yeah, I think so. I think that the difficulty when faced with one of those claims is that if the business and the named individual within the business are both listed on the claim form, the defence that you would run for the business may not necessarily be great for the individual involved and then you can end up with in-fighting and from a claimant's perspective, that's exactly what the claimant would want.

Fraser Vandal: I think in reality, the all reasonable steps defence is such a high bar because of the word "all." I mean, if it was "reasonable steps," there can be arguments with what was and what was not reasonable. But if you're looking at "all reasonable steps," then that just takes that bar a little bit higher. Looking further afield, New York State, they've recently introduced a law that effectively says, employees must receive annual anti-harassment training. They must be given written discrimination policies that can either be in the form of a model policy that the state's produced or it can be an employer-specific policy if that goes higher than certain minimum standards. From that perspective, Siobhan, firstly, can you see the UK legislation adopting that approach? And secondly, even if not, is that something that the particularly larger businesses should be doing anyway to try and make sure they benefit from that all reasonable steps defence?

Siobhan F.: I think the US is seeking to be quite progressive in this area in dealing with these issues, and by bringing in law to require the training is going further than the UK is doing at the moment. But it may well be something that could come into force here. I think that it is just a no-brainer. I think organisations have just got to do the training. Even if it wasn't the law, it is the right thing to do and you need to help and support your employees to know what the boundaries are, what is acceptable banter or otherwise in the work place. So I think almost you've got a duty of care as an employer. Set aside an employment tribunal defence, but you need to help people to understand how they can make sure that they're compliant and don't inadvertently get themselves into any difficulties.

Fraser Vandal: Yeah, absolutely. Like with all of these things, there's the financial aspect to it, as well, but from a general conscience and well-being perspective then absolutely that's something that the employers should be looking at. One of the other things that appears to be coming across from the US into the UK is this idea of love contracts or relationship-at-work policies, effectively, where individuals if they are having a relationship with a colleague, particularly a more senior colleague, different levels of seniority, need to disclose the fact of that relationship, need to also disclose if that has ended and there can be some fairly significant consequences for not doing so. I've had a few clients talk to me about relationship-at-work policies. I think it can make sense, particularly at different levels of seniority. But the impression I'm getting is that that's not yet the norm in the UK. I don't know if either of you have a view on that, but it doesn't strike me as something that's particularly prevalent now, but I suppose there's no reason why it couldn't be in the future.

Siobhan F.: Yeah, I think clients are increasingly looking at this as something that they might introduce. I think there are some tensions because everyone has the right to a private life and you don't want an employer to be too paternalistic and involved with that. But I think employers in the UK are worried about the reputational issues and therefore this is something, particularly where there's a senior person and a junior person in a relationship, where they are going to be a bit keener on disclosure of that than they would have otherwise been.

Jonathan Rennie: Yeah, certainly I find it's a difficult policy to draft because when do you put that onus on a staff member to say, "Well, there is a relationship"? Is it if you go out for dinner or is it if you go away on holiday together, which could have an impact on the business and no doubt creates those slightly awkward conversations, which would obviously become more awkward if the relationship broke up for whatever reason.

Jonathan Rennie: So from a legal point of view, they're quite tricky to draft, but I suppose it's an example of managing organisational risk and legal risk. I suppose it's the very term "love contract," which is very US-specific and as Fraser says, perhaps clients don't phone us up and ask for love contracts. But they do ask for some guidance on relationship-type contracts.

Fraser Vandal: There's definitely no one that's used the term "love contract." But I think the idea, as well, we were talking about duty of care.

Fraser Vandal: I suppose that's part of the all reasonable steps position, as well. If you know there is a relationship going on between a senior employee and more junior employee, it does seem a bit odd putting that in writing, but when you take a step back and think about it, you can argue that's part of a duty of care perspective, to know it's a consensual relationship, both parties are happy with that arrangement. You will then later know if that arrangement is broken down and if that type of conduct continues, then that may be something that employers feel duty-bound to investigate or take a further look into

Jonathan Rennie: So as well as that type of query, I suppose one of the main talking points about the Me Too movement has been the use of nondisclosure agreements, or NDAs, which have been variously in the press, I suppose, as gagging agreements, silencing provisions, and which have clearly received an enormous amount of media scrutiny and indeed parliamentary consultation on whether these type of clauses should be allowed. Siobhan, could you take us quickly through a run-through of what exactly is an NDA?

Siobhan F.: Yes. You hear this phrase "NDA" bandied around a lot. I think for employment lawyers and HR professionals, really what we mean when we're talking about NDAs in this context is a settlement agreement settling someone's claims that they could bring that contains a confidentiality clause and a confidentiality clause that prevents them from talking about these circumstances of their harassment, and that's why they've got a lot of bad press because it prevents someone telling other people what's happened to them. And also, I suppose, potentially allows the alleged harasser to stay in the business and potentially the same thing could happen again.

Siobhan F.: As you say, this is something that the government's been looking at carefully and the Women and Equalities Commission has been conducting an inquiry which is ongoing at the moment as to the regulation or potential regulation of NDA agreements and even the extent to which they should be allowed at all in sexual harassment cases.

Siobhan F.: I think that certainly the CIPD submitted a report to the Women and Equalities Commission saying that they felt it was still important to have settlement agreements and some level of confidentiality, but I think probably what most people agree is that this shouldn't prevent whistle blowing. It shouldn't prevent somebody being able to go to the authorities or take part in an investigation that might be being conducted by the authorities around the harassment. So I think that's very much watch this space and hopefully something that we could report back on in future podcasts.

Jonathan Rennie: Sure. I always find it interesting when I talk about settlement agreements because when this is portrayed in the media it sometimes comes across that a settlement agreement is an unusual or an exceptional document and the reality for me is always, in the UK at any one time, there are presumably tens of thousands of settlement agreements and we have the protected conversation regime, which enables employers and employees to have these type of discussions.

Jonathan Rennie: And I think maybe in the media reporting it comes across as if this is a unique, exceptional document that's used as I say to gag or to silence people, when in actual fact it's fairly commonplace. So it'd be interesting to see how the parliamentary commission responds on legislation in this area, if at all.

Jonathan Rennie: Well, as you know we'll be doing regular listener questions, but as this is our first episode, we've got a couple of questions that we've been asked by clients, and they're the type of questions we get asked on a very regular basis and they're quite practically focused, so I thought I would open them up for discussion.

Jonathan Rennie: Firstly, Siobhan, I wonder, what do you think the top tips are for an employer faced with an employee claiming sexual harassment?

Siobhan F.: Okay, I think there's probably in my mind three key things and it's not rocket science, but firstly I think we need to take it seriously. No matter how senior the alleged harasser is, this is something that needs to be dealt with under your policies and procedures, but needs to be a serious matter.

Siobhan F.: Secondly, you need to investigate it quickly and thoroughly. Often it can be useful, especially if the alleged harasser is very senior in the organisation, to use an independent organisation to investigate it. And there are lots out there who can do a very good job because it's quite difficult for someone internal to be making findings that are perhaps not in favour of one of their... Maybe someone they report to or someone more senior within the organisation. That can be quite difficult.

Siobhan F.: And then I think, finally, just to be brave and take decisive action. We're increasingly seeing situations where very senior people in organisations are being dismissed or are asked to leave because their behaviour isn't in line with what's required in that employer's business. Reputationally, it's just going to become ever more important to not try and sweep these things under the carpet. And I think also it sends a very powerful message to the rest of the organisation if actually a company is prepared to challenge senior people and call them out on behaviour which is unacceptable. I'm sure that that affects the behaviour, then, of others within the organisation.

Jonathan Rennie: Great. And Fraser, I wonder what your thoughts are about practical steps. What do you think employers should be doing when they're faced with a sex harassment claim?

Fraser Vandal: One thing that I'm seeing a lot more of is that individuals are now trying to take steps to record meetings, be it investigation meetings, disciplinary hearings, appeals, the whole range. They can ask to record it. They're trying to do so covertly, and with smartphone technology now, even covert recordings come out with generally very clear voice clarity. So what I'm seeing and what I think would be worthwhile is no-phones policies in meetings, phones off, phones on the table, because you're working off notes, you're working off... The note taker in these meetings is there for a reason. So unless an employer is happy to record those meetings, I certainly think a no-phones policy would be worthwhile.

Fraser Vandal: Secondly, I think a general health check of employee handbooks, various policies would definitely be worth a look, particularly, and we were speaking earlier about social media and the impact of social media, and how that can often be where these types of cases start, ensuring that your equality policy, or your various suite of equality policies, depending on how you structure it, sits in neatly with your social media policy so that everyone knows exactly where the lines are and what they should and should not be doing.

Jonathan Rennie: I think this is a very small window into the sorts of things we've been hearing about recently and captures the challenges that employers are facing today. There's some very high-profile cases, and they're very much changing the way businesses operate and how people are expected to behave.

Jonathan Rennie: We'll obviously let you know as and when there are any legal updates in this area, both through our podcasts and our monthly updates, which you can subscribe to via our website at TLTsolicitors.com.

Jonathan Rennie: I hope you've enjoyed today and found it useful, and we would really appreciate your feedback, so please take a moment to review and to share our podcast. It will mean that more people can take a listen.

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Jonathan Rennie: The information in this podcast is for general guidance only and represents our understanding of the relevant law in practice at the time of recording. We recommend you seek specific advice for specific cases. Please visit our website for our full terms and conditions.

Date published

03 April 2019


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