In this week’s blog, Stacey West from our Employment team provides an update on equal pay issues and sexual harassment complaints at work with a focus on what employers can and should be doing to address these issues and what options are available to employees facing these issues.
Solicitors, Julie Dalzell and Paul Clark, from our Employment team, have previously written interesting articles on both of these topics and for anyone who wants to revisit those articles they can be found at the following links; “Do time-lords and time-ladies get the same pay?” and “Obtaining representation in tribunal“.
Stacey is writing this article following the recent media coverage about Carrie Gracie leaving her position as the BBC’s China Editor citing ‘unlawful pay discrimination’. In recent weeks there have also been more allegations made of sexual harassment in the entertainment business and you may have seen the reports about many celebrities dressing in black for this year’s Golden Globes in protest against sexual harassment and to raise awareness for the ‘Time’s Up’ initiative against sexual misconduct both in Hollywood and beyond.
Some of the statistics that are available on sexual harassment in the workplace make for an alarming read. One such survey, conducted on behalf of the BBC, found that half of British women and a fifth of men have suffered sexual harassment at work or in a place of study. Our employment team has a wealth of experience in providing advice to clients who have suffered sexual harassment at work and also to employers who are facing allegations from employees that they have suffered sexual harassment at work.
It is important for employees to be aware that there are protections in place within the Equality Act 2010 to enable them to bring claims where they have suffered sexual harassment at work. Under section 26(2) Equality Act 2010, a person harasses another if they engage in unwanted conduct of a sexual nature that has the purpose or effect of violating the other person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the other person. The meaning of ‘unwanted conduct’ is broad and for the purposes of sexual harassment must be sexual in nature. This could, for example, potentially include; sexual advances, sexual jokes, sexual words whether in person, emails or text messages. There is also protection within the Equality Act 2010 for employees who believe they have been treated less favourably for rejecting or submitting to sexual harassment at work. Employees can bring complaints of sexual harassment against their colleagues but it is also vital for employers to be aware that they are responsible and can be found to be vicariously liable for any acts of sexual harassment (along with other forms of discrimination) done by a person ‘in the course of his employment’. This can include acts of sexual harassment that take place at work events such as office parties, whether or not the employer was aware or approved of the incident of sexual harassment. From a practical perspective, it can be in an employee’s interest to name their employer as a party to a sexual harassment complaint due to the duties they owe to employees and the greater financial resources generally at their disposal to meet any awards the tribunal may make.
Following the abolition of tribunal fees last year, employees are able to pursue these types of complaints without having to pay a fee to issue their claim. It is widely considered that the abolition of tribunal fees is likely to result in an increase in the number of tribunal complaints being issued.
There is a defence available to employers in sexual harassment complaints brought by employees who are seeking to argue that their employer is vicariously liable for the acts of sexual harassment committed against them by a colleague. The defence is that the employer took ‘all reasonable steps’ to prevent the employee from doing discriminatory acts. The employer would have to be able to show that those steps were taken before the act of alleged sexual harassment took place and only taking those steps post-allegation would not help an employer seeking to rely on this defence. What amounts to ‘all reasonable steps’ depends on all the circumstances of the case but can include steps such as; implementing and following an equality policy, taking steps to address any allegations of discrimination, ensuring all workers are aware of the relevant policies and procedures and the potential repercussions if they act in breach of them and providing equal opportunities training to staff.
In light of the ongoing media reports and statistics highlighting sexual harassment as an issue across numerous industries and in workplaces, we strongly recommend that all employers take the time now to review their internal policies and procedures and to properly assess whether the working environment or culture within their organisation might increase the risk of sexual harassment occurring and to make appropriate changes now to those policies, procedures and the working environment. A key part of ensuring the culture and environment is appropriate within an organisation can be providing training to staff on acceptable conduct and equal opportunities at work and also on how to deal with any allegations of harassment or discrimination in the workplace. From an employer’s perspective, taking these steps can help go towards not only demonstrating that they took ‘all reasonable steps’ to prevent sexual harassment, or other forms of discrimination, from occurring in their workplace but importantly can help create a better working environment.
Moving on to discuss equal pay, we are sure many of you saw the reports about Carrie Gracie resigning from her post with the BBC citing ‘unlawful pay discrimination’. This follows the reports last July after the salaries of top earners at the BBC were published.
There remains a great deal of pay secrecy within workplaces in the UK and while the forthcoming introduction of the gender pay gap reporting obligations will go some way towards addressing that, there is still a huge amount of work to be done to properly address these issues. The current gender pay gap reporting obligations apply to those organisations with 250 or more workers who will have to publish their figures by this April. The gender pay gap is a measure of the difference in pay received by men and women and is different to equal pay.
While the gender pay gap reporting obligations currently only apply to larger employers, we recommend that all employers, regardless their size, take the opportunity now to consider how they can address any gender pay disparity issues within their organisation to ensure they are not falling foul of the equal pay laws and to create a level playing field for men and women.
If you would like to discuss any of the issues raised in this blog in more detail, please contact one of the members of our Employment team on 01642 356500/0191 2322574 or by email at: