Leading employment lawyers and equality campaigners are calling for a legislative change to make it easier for victims of sexual harassment to take legal action against their abusers.
Michael Newman, a partner at Leigh Day, told HuffPost UK that the current three-month limitation on when cases could be filed with an employment tribunal should be doubled.
The call came as an avalanche of sexual harassment claims amassed in the aftermath of the Harvey Weinstein scandal, which simultaneously illuminated Hollywood’s lecherous leanings while empowering women everywhere to recall their own horror stories under the hashtag - #MeToo.
While Newman, who specialises in employment and discrimination cases, said there was no “silver bullet” in combating sexual harassment, which ultimately requires a “culture change”, legislative measures could help more victims come forward.
“Something needs to be done on many fronts. The law can be changed to make it easier to bring claims, but people are still going to face resistance to doing that when the culture remains as it is.”
Newman cited a push by Maternity Action to extend the amount of time pregnant women have to file discrimination cases - they want it increased from three months to six - as a key change that could also help victims of sexual harassment.
Pregnant woman are often too focussed on their pregnancy to lodge complaints within the time limit, while victims of sexual harassment often fear “reprisals” and don’t raise complaints until they’ve left their job, he explained.
“That’s where I’d take the lead from,” Newman said. “So often with these things by the time it comes to light, or people feel comfortable (to talk about it)... which is often when they have left, the issue is out of time.
“The bigger problem here is that you shouldn’t have to leave your job to be able to complain about something that has happened there. You shouldn’t have to choose.”
While Newman said time-limits were necessary to ensure cases could be investigated effectively, a six-month cutoff would still be “relatively quickly” and would encourage more victims to seek redress.
“The longer it is the more complainants, individuals, will feel comfortable to come forward because often it is only when they’ve left, when they know the fear of reprisals is no longer there, ‘I no longer work at the company, therefore I now feel comfortable about saying what happened’. So it will help in that respect.”
Remziye Ozcan, an employment lawyer at Slater and Gordon, backed Newman’s call: “In terms of bringing a claim, the three month time limit puts pressure on clients to make a decision quickly and so extending this, perhaps even doubling it, would be a good start.”
What experts in the field of sexual harassment want:
* Extend time-limit on filing cases with the Employment Tribunal.
* Make it mandatory for workplaces to have a sexual harassment policy.
* Re-introduce third-party harassment and Statutory Equality Questionnaire.
* Better workplace education.
* Investment in sexual harassment data collection.
With Brexit dominating Parliament, Newman said it would be very difficult to get the legislation changed, however, he added the biggest roadblock to making complaints was still the “fear of reprisals”.
“That it will mean, ‘I will get sacked, I won’t get promoted... something bad will happen to me’,” Newman explained, saying the problem needed to be solved at its root - within the workplace.
“This shouldn’t be legally focussed because actually you don’t want the story to be that the only way you can get something done about this is if you bring a claim... wait a year, go before a judge, everyone asks you a lot of intimidating and personal questions, but ultimately you win. For many people, even though the outcome was successful it will not be particularly encouraging.”
Scarlet Harris, the women’s equality officer for the Trade Union Congress (TUC), also backs calls to extend the tribunal time limit.
“When you’re in a vulnerable situation and you’ve experienced something very shocking at work you’re not in a good mental state, or position, to know what to do. It might take you a while to work out what your best course of action is. Whether you’ve got the stamina, the will, to go through a tribunal process. So to give someone three months is a relatively short period of time to go through that process.””
- Scarlet Harris, women’s equality officer for the Trade Union Congress
Harris, who led a TUC investigation into workplace sexual harassment last year, said while it is “clearly a cultural problem”, labelling it as such “becomes a cop-out”.
“Like, ‘we can’t fix it because it is a deeply embedded problem’. Culture can change. You change it through legislation. You change it by government initiatives, employer initiatives. There are things we can and should do to improve the situation.”
Harris said there is more the government can do legislatively and lamented the “unpicking” of the Equalities Act and other workplace regulations in recent years as part of a “red-tape challenge” .
In 2013, Section 40 of the Act was scrapped which contained provisions to safeguard workers against third party harassment - acts committed in their place of work by people not employed by their company, such as customers or clients. At the time, Harris said, 70% of respondents to the government consultation on the repeal opposed it.
Reintroducing the provision was one of several recommendation the TUC made in its 2016 report into sexual harassment in the workplace, titled ‘Still just a bit of banter?’ It found nearly two-thirds of young women had experienced unwanted sexual attention at work.
Harris said third party harassment makes up a “surprisingly big part” of all sexual harassment cases: “Women are particularly vulnerable to sexual harassment when they are dealing with members of the public, when you think about nurses, women working in shops, in hospitality, bars and hotels... it is a massive issue”.
The suggestion was backed by the Fawcett Society, with its Chief Executive Sam Smethers saying, “we need to outlaw harassment by third parties”.
The charity which promotes gender equality and women’s rights, “welcomed” a push to extend time limits around lodging proceedings and said more data needed to be collected around sexually motivated harassment.
“Recording incidents of street or online harassment as misogyny hate crime would begin to recognise the scale of misogyny in our society,” Smethers said.
Since May, North Yorkshire Police have recorded incidents of misogyny as a hate crime and in the five months since they’ve had eight incidents.
While saying workplaces across the spectrum dealt the sexual harassment “patchily”, Harris said those whose staff dealt with the public needed to do more to protect them: “I think it is certainly true to say that it is easier for employers to pass the buck and say there’s nothing they can do... they’re a customer or a client, or even, ‘the customer is always right, you have to smile and get on with it’.”
Another provision removed from the Equalities Act, which the TUC wants reinstated, is the Statutory Equality Questionnaire which allowed sexual harassment victims to ask questions of their alleged harasser before tribunal hearings in order to better prepare and evaluate their case. The procedure was removed in 2014 despite, Harris says, over 80 percent of respondents to the government consultation opposing it.
Ozcan backed this suggestion saying while it is “still good practice” for employers to respond to questions from staff concerning harassment, “there is no statutory time frame or automatic inference of discrimination if they fail to respond, as used to be the case”.
Like Newman, Harris said attempts to curb sexual harassment should not be limited to legislative measures.
Workplaces could “and should do a lot more” to promote and remind staff of their policies and the government should make them, while also doing more to raise awareness, she said. In some countries, such as Belgium, employers have a legal duty to protect their workers.
“What is very common is that there will be a (sexual harassment) policy but it will be in a dusty staff handbook somewhere, that no one has seen, that no one knows where it is,” Harris lamented.
“I’d like to see more Government action to make employers do more and to make sure employers are actually putting these policies in place and implementing them.”
Ozcan also put the onus on workplaces to change the culture around sexual harassment, saying the “law is already there to protect people”, and backed Harris’ call for Government involvement.
“What needs to change is how employers deal with sexual harassment in the workplace and how they support employees to prevent it happening in the first place.
“Employers need to do more to create a culture of openness rather than silence, in which staff feel comfortable and secure in calling out any sexual harassment of themselves or their colleagues.”
- Remziye Ozcan, employment lawyer at Slater and Gordon
“Educating the workforce is paramount – people need to know what is and isn’t acceptable – and every company should have clear anti-harassment and discrimination policies. Currently there is no legal obligation on employers to do this, but making it mandatory would be a positive step. Companies may also benefit from a diversity ‘champion’ to act as a trusted point of contact for anyone with concerns.”
Harris said one sign that the issue was not been taken seriously enough at a government level was the lack of statistical data on sexual harassment, with the TUC’s report last year being the only research on the topic.
She urged the government and the Office of National Statistics to invest in understanding the depth of the issue and for the Equalities and Human Rights Commission to be “better funded” to investigate it: “Because this Harvey Weinstein scandal has just shown the extent of the problem. It is everywhere and nearly every woman you speak to can give you an example of it happening to her, or someone in her network.”
MP Maria Miller, who is the chair of the Women and Equalities Committee, told HuffPost UK: “What we need is for schools colleges and businesses to take this seriously and treat it as unacceptable and where appropriate criminal.”