The lingering presence of sexual harassment in our workplaces continues notwithstanding noble efforts of movements such as #metoo to raise awareness of these issues and empower victims to come forward.
Whilst awareness improves steadily but surely, prevention and enforcement are still lacking, and CILEx is pleased to see the government's renewed focus on prevention in their most recent proposals to establish a proactive duty on employers to prevent incidents of workplace harassment.
Responding to the Government Equalities Office consultation on Sexual Harassment in the Workplace, CILEx hopes that the reforms put forward shall see a shift from taking all reasonable steps to avoid sexual harassment as a defence following an incident, to a general requirement on employers to bolster their internal safeguarding mechanisms and prevent incidents from occurring at the outset.
However, whilst CILEx awaits the detail behind these proposals, in the form of an expected statutory Code of Practice which is yet to come, it is important to recognise the shortcomings of our current systems in enforcing the rights of victims where incidents have occurred.
Weak enforcement powers of the European Human Rights Commission, combined with significant access to justice barriers in the employment tribunal, have left victims of sexual harassment unable to seek the redress that they deserve, the justice that they seek and the closure that they very much need.
CILEx members have bravely come forward to demonstrate that even amongst lawyers, who possess a greater understanding of our justice system, these barriers, such as the tribunal's three-month limitation period, have prevented them from enforcing their rights and protections, as the time limits provided fail to account for the emotional complexity and wider sensitivities of these cases.
This is not the first time that CILEx has called for reforms to the employment tribunal, having previously advocated for access to legal aid for litigants in the tribunal, access for workers in having their case heard, enhanced powers for the tribunal to enforce its own orders and extended limitation periods, alongside additional time provided in exceptional circumstances such as for pregnant women bringing a case post-partum.
CILEx calls for the proposal's new statutory duty to be supplemented with these wider reforms to our tribunals and to be complemented by non-legislative solutions to address the cultural and societal barriers that have contributed to an ongoing prevalence of workplace harassment.
As one CILEx member stated: “Laws do not impact culture without enforcement or strong messages. Cultures where sexual behaviour in the workplace is accepted as banter or the norm, dismiss legislation and minimise its impact making those subject to the behaviour feel the laws are not worth pursuing. Peer pressure in these environments is rife, for example even where a woman or man considers action there is pressure to not take such behaviours so seriously by others.”
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