When safety crimes are committed by employers and workers are hurt as a consequence, you’d expect the Health and Safety Executive (HSE) would have your back.

But not if those crimes involve sexual harassment, an investigation by Hazards has revealed.  It exposes a ‘#NotMe’ culture pervading Britain’s regulators, with neither HSE nor the equality watchdog, the Equality and Human Rights Commission (EHRC), prosecuting cases or undertaking any preventive inspections.

It is an enforcement anomaly that has led the TUC to call for both law enforcers and law makers to act. For those damaged by harassment at work, this couldn’t happen too soon.

Prevention blindspot

Sexual harassment at work often involves physical or psychological abuse and has been linked to depression and poor mental health. It is by any reasonable definition an act of violence.

This would include the definition used by HSE, which says “work-related violence” is: “Any incident in which a person is abused, threatened or assaulted in circumstances relating to their work. This can include verbal abuse or threats as well as physical attacks.”

It is hard to conceive of “any incident” of sexual harassment in the workplace that doesn’t fall within the scope of HSE’s workplace violence definition.

But EHRC, not HSE, has been designated the “lead regulator” on sexual harassment at work. And EHRC has neither the mandate nor the resources to police workplace practices, enquiries by Hazards have confirmed.

While HSE has an inspectorate with an enforcement and investigatory role, Hazards has established the safety regulator is deferring to EHRC and declines to investigate, prosecute or record cases of sexual harassment in the workplace. In fact, HSE has barely any intelligence on the issue at all and “does not maintain such records”.

DUTY CALLS The TUC, women’s rights organisations and charities launched a ‘This is not working’ alliance on 26 June 2019, calling on the government to introduce a new law to make employers responsible for protecting their staff from sexual harassment at work.  The alliance wants to see the law changed so employers have a legal duty to take preventive measures to ensure their workplaces are harassment-free. The alliance has launched a petition calling for the new law. more

Only one other patently relevant occupational harm – work-related suicide – occupies such a blanket HSE blindspot. It is an act of regulatory hand-washing that contributes inevitably to the continuation of a workplace protection crisis, with TUC research finding more than half of women in the UK have been sexually harassed at work. Only one in five victims report it.

Their reluctance is understandable. The cases are not recorded, are not investigated and there are no agencies taking responsibility for prevention of work-related sexual harassment. Instead victims are left in the firing line.

Touchy issue

The ‘#MeToo’ movement has increased pressure on the government to act, especially after unfavourable coverage of harassment of parliamentary staff, a message reinforced in a February 2019 Fawcett Society report that concluded “MPs, Peers, volunteers and staff are woefully unprotected if they are sexually harassed in Parliament” as result of “glaring gaps” in the law.

FAST FEUD  Sexual harassment of McDonald’s staff has attracted critical press coverage worldwide and provoked the first ever strikes by workers employed by the fast food chain in the US and the UK. UK workers backed by the union BFAWU have launched a petition, which notes: “McDonald’s is the world’s second largest employer. Because of its size, McDonald’s sets standards in the fast food industry and the service sector overall. So when it comes to sexual harassment, it needs to do much better.” www.bfawu.org/mcstrike • more

In December 2018, the government announced a new code of practice and a commitment to undertake consultations on legal protections from sexual harassment in the workplace.

The government said: “More formal liaison arrangements will be set up” between HSE and the EHRC, with EHRC remaining the ‘lead regulator’.

The government said “HSE will include better advice and signposting on its website”, and will contribute to “any new guidance, access to relevant stakeholder networks and identifying appropriate events and workshops for EHRC to further promote good practice.”

HSE will also investigate additional ways “to promote co-operation, share intelligence and where appropriate, co-ordinate on joint activities.”

But while the 2018 Women and Equality Select Committee report that led to the government’s action called for the code of practice “to identify when sexual harassment allegations may include criminal offences and how to conduct any investigation in a manner which does not prejudice any potential police investigation and criminal prosecution,” the government response kept investigations off the table.

MISSING MILLIONS  Equality regulator EHRC told Hazards it has no preventive role when it comes to sexual harassment at work. But it added that after a review of employment tribunal judgments it has taken “a more positive good practice advocacy role.” This included engaging with “with nine employers to ensure they adequately protect staff from sexual harassment.” But there are millions of employers in the UK. EHRC’s response doesn’t scratch the surface and it isn’t preventive.

The government said it “shares the Committee’s concerns that evidence suggests many employers are currently failing their employees in their responsibility to prevent sexual harassment, and in the systems they have in place for dealing with it when it does occur.”

Despite admitting this failure of the current system to control bad behaviour by employers, the existing regulatory regime would be retained and remain the responsibility of EHRC, the government said, “under the powers conferred on it by the Equality Act 2006.”

But EHRC does not have the power to act to prevent or prosecute workplace harassment cases.

Prevented prevention

In April 2018, EHRC made plain victims of sexual harassment at work need better protection because their voices have been silenced by a “corrosive” workplace culture.

The equality body’s report, Turning the tables: ending sexual harassment at work, noted “the Commission cannot currently take enforcement action for failure to take preventative steps.” It called for a “mandatory duty” on employers to take measures to prevent sexual harassment at work and to enable EHRC enforcement action.

HARASSMENT BLUES  Media coverage portrays a different story, but studies show workplace sexual harassment victims are more blue collar than red carpet, with low paid service sector and hospitality workers among those at a high risk.

The government though said the existing law was sufficient, noting that under the Equality Act: “Employers already have a responsibility to protect their employees from harassment and victimisation on the workplace.”

However, that Act leaves victims of sexual harassment in the workplace to be their own enforcer via an employment tribunal complaint, a step few victims are either equipped or willing to take.

The Code of Practice does not confer new rights or duties on EHRC or give it new resources for investigations or enforcement. No body is tasked with dismantling corrosive workplaces. If you are sexually harassed at work, legally speaking, you are on your own.

It can’t be allowed to continue, TUC general secretary Frances O’Grady told Hazards. “There’s no denying the scale of the problem of sexual harassment at work. The #MeToo movement has shown that the problem stretches across jobs and industries, while research by the TUC and others has shown just how many people are affected.

GAG LAG  The government must stop stalling and change the law so victims of sexual harassment at work are no longer silenced by ‘gagging clauses’ and negligent employers face effective sanctions, the TUC has said.  more

“So workplace culture needs to change. That will only happen on the scale that we need if government introduces a new legal duty on employers to take preventative steps to stop sexual harassment from happening in the first place.

“This duty would be supported by a code of conduct, explaining exactly what steps employers must take to comply.”

No-one is looking

For now, measures to stop sexual harassment in the workplace is off the government’s work plan. Under the current rules, both the safety and the equality regulators have told Hazards they undertake no inspections or investigations with a view to preventing sexual harassment risks or prosecuting the offending employers.

HSE made it clear to Hazards it has no inclination to use its powers to act where negligent employers have contributed to workers being exposed to risk, injury or distress at work as a consequence of sexual harassment. The workplace safety regulator told Hazards: “As HSE is not the lead regulator on sexual harassment, it does not form part of the enquiries during an inspection.” It added: “HSE has not investigated cases of sexual harassment.”

HSE has “not advised or taken enforcement action in cases of sexual harassment” in any of the last five years, either on its own or in support of other regulatory agencies including EHRC, it said.

While it may sometimes become aware of sexual harassment concerns, it doesn’t seek the information and it does the bare minimum when it obtains it.

UNEQUAL WRONGS  Nearly 7 in 10 (68 per cent) lesbian, gay, bisexual and trans (LGBT) people report being sexually harassed at work, according to research published by the TUC. more

In the last five years, it said there was “one investigated concern raised in 2014 which included sexual harassment as one of several issues at their employer. The notifier was advised to contact ACAS in relation to concern on sexual harassment.”

A search of its database in response to a freedom of information request from Hazards revealed on average only one case a year on any topic is referred to ACAS, but HSE could not determine whether any of these referred to sexual harassment. Nor could HSE identify any cases in the last five years that had been referred to EHRC.

It noted: “HSE has not advised or taken enforcement action in cases of sexual harassment” in any of the last five years, either on its own or in support of any regulatory agencies.

HSE added it has “nil” records over the last five years of incidents where it has observed an employer, through their failure to take reasonable preventive measures, allowing the continued existence of an environment where a worker had been subject to violence and where sexual harassment or sexual assault was a related factor.

Despite harms related to workplace sexual harassment seemingly fitting flush within HSE’s definition of workplace violence, that does not inform its enforcement choices, it indicated.

“HSE’s broad definition of work-related violence is not a legal definition and does not set out the scope of what HSE will investigate,” the safety enforcer said, adding: “HSE does not seek to apply the Health and Safety at Work etc. Act 1974 where there is other more specific legislation or a more appropriate regulator.

“Therefore, this definition captures incidents which fall to other regulators.”

Definitively wrong

In contrast to its publicised “any incident” definition, HSE gave Hazards a far more circumspect account of its approach to violence.

HSE said this was limited “in general” to third party violence, for example “violence from members of the public to healthcare staff or workers in protective services such as the police in the course of their work.”

JUST THE JOB?  Molly Phillips (above) won a workplace sexual harassment case in December 2018 after being half strangled at work and having to leave her job.  Lizzie Walmsley (below) won her case in January 2019, after being forced out of her new job for talking to the media about harassment in a previous job. You can read their stories in Hazards 145.

The safety watchdog clarified: “HSE’s regulatory focus is usually on the organisational arrangements that the employer has in place and the precautions to protect groups of staff.”

But EHRC’s April 2018 report states explicitly that under equality law there is no equivalent mandatory requirement on employers to take preventive action on sexual harassment, so no possibility for EHRC to investigate or act.

Unlike HSE, which can undertake both preventive and reactive inspections and investigations, EHRC told Hazards it needs “reasonable grounds to suspect that an unlawful act such as an act of sexual harassment has taken place.”

An EHRC spokesperson told Hazards “we cannot conduct prosecutions and as such any action we take would not lead to custodial sentences. Nor can we issue fines. Our remit is limited to taking enforcement or legal action involving breaches of the equality and human rights legislation.”

EHRC confirmed it does not “have the power to assess whether employers have committed health and safety failings”, adding “we cannot conduct prosecutions and as such any action we take would not lead to custodial sentences. Nor can we issue fines.”

It added: “We have called for a mandatory duty to be placed on employers to take proactive steps to prevent harassment in the workplace and for breach of the duty to be an unlawful act. This would allow the EHRC to take enforcement action in situations where such steps have not been taken, potentially before sexual harassment has in fact occurred.”

Unwarranted role

Even with the introduction of a mandatory duty on employers, EHRC would remain a second-class regulator.

The equality watchdog can only investigate where it already has evidence there is a problem. As the Women and Equalities Committee found in 2018, neither sexually harassed workers nor culpable employers are clamouring for an EHRC’s intervention, so this required prior knowledge is rarely available. The problem in almost all instances remains safely hidden behind the workplace doors.

If the mental and physical harm caused by sexual harassment was treated as a workplace health and safety issue, employers would be subject to far greater scrutiny and accountability. Inspectors working for the safety regulator, HSE, have “inspector warrants”, under which they “have the right of entry to your premises as well as the right to talk to employees and safety representatives, and exercise powers to help them fulfil their role.” Employers can face a criminal prosecution if they deny HSE inspectors access to the workplace, hamper their investigations or fail to act on their recommendations.

Unlike HSE, EHRC cannot undertake an unannounced preventive inspection even if it wants to. An EHRC spokesperson confirmed: “We don’t have a right of entry to premises without the permission of the owner. 

“Our powers are set out in the Equality Act 2006, which gives us the power to conduct inquiries (section 16), investigations (section 20) and assessments of public authorities’ compliance with the Public Sector Equality Duty (section 31).”

EHRC can only compel an employer to provide information, but without the reality check of an investigation inside the workplace to determine working practices first hand.

EHRC confirmed: “Schedule 2 to the Act says that, when carrying out any of these functions, we can give someone a notice requiring them to provide information, documents or evidence. If they fail to comply with the notice, we can go to court for an order requiring them to comply which, if breached, is an offence punishable upon conviction with an unlimited fine.”

HSE can catch errant employers red-handed. EHRC can’t even get in the door.

No mandate

For now, the government has not introduced any new duties on employers to take preventive steps. It means that contrary to HSE’s assertion, there is neither “more specific legislation” nor a “more appropriate regulator” in a position to take action against employers failing to take reasonable preventive action on sexual harassment at work. And there is no regulator with a health and safety mandate willing or able to take on the role.

EHRC told Hazards that after a review of employment tribunal judgments it has taken a more positive good practice advocacy role, including engaging with “with nine employers to ensure they adequately protect staff from sexual harassment. To date this has resulted in legal agreements with four employers… All 5 of the other cases remain under consideration for further action.”

EHRC cited a legal agreement in February this year with transport firm Go-Ahead London where a harassed bus driver who was unfairly dismissed received a £55,000 tribunal payout and a second agreement in January with Rainbow Theatre Productions after actor Helen Haines won a tribunal payout of over £10,500 with the support of her union Equity for the sexual harassment that led to her leaving her job.

ACTING UP Actor Helen Haines said taking her sexual harassment case to a tribunal “made me feel yet again victimised and intimidated”. She added that taking the case to the courts would have been impossible without the support of her union, Equity. more

EHRC added: “We have also taken less formal action in a range of other cases. For example, we’ve engaged with the House of Commons authorities regarding improving procedures for dealing with sexual harassment in the House and similarly with many other organisations regarding improvements to their practices and procedures.

“We have also issued guidance where we have engaged in pre-action correspondence but formal enforcement action has not been appropriate. We have also previously agreed to fund sexual harassment litigation and continue to receive and assess referrals with a view to potential funding.”

But none of this is preventive, and with over half of women – and a higher proportion of LGBT workers – reporting they’ve experienced sexual harassment work, it leaves almost all those “corrosive” workplaces safe from scrutiny. It is a system that relies on tribunal claims by employees when in reality only a small minority dare even report the abuse.

For its part, The EHRC plays a coordinating role. “The Commission chairs a regulator, inspectorate and ombudsmen (RIO) forum which shares knowledge and experiences around human rights and equality practices,” it told Hazards.

“We have used this forum to work with a wide range of regulators including the Health and Safety Executive and others such as, for example, the Solicitors Regulation Authority, the Bar Standards Board, the BMA and the RCN to promote and develop best practice on tackling workplace sexual harassment in the sectors that they regulate.”

This means EHRC oversees a liaison system over a succession of bodies, none of which consider it their role to identify risks and prevent sexual harassment in workplaces and all of which rely on a victim of workplace sexual harassment to come forward, name the perpetrator and initiate legal action.

For someone who is likely to be vulnerable, harmed or both, the system doesn’t deliver prevention, it requires the victim to volunteer for further pain and public scrutiny.

The TUC wants change. “We need to strengthen the role of key regulators like the EHRC and HSE, as well as reintroducing and improving legislation to protect workers from third-party harassment,” Frances O’Grady said.

Instead we have a case of officially sanctioned regulatory buck passing. And thousands of workers each year could be paying a high price.

And neither HSE nor the government seem inclined to do anything about it.

McDonald's facing new sexual harassment charges

For the third time in three years, McDonald's Corp is facing allegations of rampant sexual harassment of female employees in its US burger joints. Twenty-three new complaints against McDonald's - 20 of which were filed with the US Equal Employment Opportunity Commission (EEOC) – have been brought by the American Civil Liberties Union (ACLU), the labour group Fight for $15, and the TIME'S UP Legal Defense Fund.

The complaints include inappropriate touching, indecent exposure, lewd comments and requests for sex, as well as retaliation for reporting such conduct. The incidents are alleged to have occurred at corporate and franchise stores in 20 cities.

“It's a brutal reality across the fast food industry that at least one in four workers - especially women of colour working low-wage jobs - experience sexual harassment as a routine part of their job," said Sharyn Tejani, director of the TIME'S UP Legal Defense Fund, in a statement. “Every day, workers are forced to choose between getting a pay cheque or speaking up about their abuse. When they report harassment, workers are often fired or have their shifts cut - and since nothing is done to stop it, the scourge continues.”

In September 2018, McDonald's employees staged a one-day strike in several US cities to protest sexual harassment in the workplace. McDonald’s workers again took strike action in late May this year in a campaign for higher wages and protection against sexual harassment.

In the UK, where strikes have also held at a number of the burger chain’s outlets, McDonald’s workers backed by the foodworkers’ union BFAWU have started a petition calling on McDonald’s protect staff from sexual harassment.

The petition notes: “McDonald’s closely monitors everything we do – from how fast we prep orders to the type of lettuce we serve. It has the power and the responsibility to make sure all workers are protected from harassment on the job, but has failed to do so. We need McDonald’s to commit to meeting with us – its workers – so together we can come up with a plan to stamp out harassment in its restaurants.” BFAWU is running a #McBurned safety campaign.

www.Metoomcdonalds.org

Law must change on sexual harassment at work

The government must change the law so victims of sexual harassment at work are no longer silenced by ‘gagging clauses’ and negligent employers face effective sanctions, the TUC has said.

Commenting on the 11 June 2019 Women and Equalities Committee report on non-disclosure agreements, TUC general secretary Frances O’Grady said: “More than half of women in the UK have been sexually harassed at work. Sexual harassment has a huge impact on women’s careers and lives so the Committee is right to call for radical change.”

She added: “Small tweaks to non-disclosure agreements won’t cut it. The government must change the law to put the responsibility for preventing harassment on employers, not victims. This would shift the burden of tackling sexual harassment away from the victims. And it would help end toxic workplace cultures that silence those who’ve been harassed.”

The TUC is calling for a series of changes including: amending the law to make employers legally responsible for taking meaningful steps to rid their workplaces of harassment and victimisation; enforcement “with real teeth” so that employers who refuse to comply suffer a financial hit large enough to compel them to take action; stronger legal protection from harassment from customers and other third parties at work; and an extension to time limits for lodging tribunal claims to help people access justice.

Launching the Women and Equalities committee report, Maria Miller, the Conservative former culture secretary who chairs the committee, said: “It is particularly worrying that secrecy about allegations of unlawful discrimination is being traded for things that employers should be providing as a matter of course, such as references and remedial action to tackle discrimination.”

The use of non-disclosure agreements in discrimination cases, Women and Equalities Committee, House of Commons, 11 June 2019.

Most LGBT workers report being sexually harassed

Nearly 7 in 10 (68 per cent) lesbian, gay, bisexual and trans (LGBT) people report being sexually harassed at work, according to research published by the TUC.

The TUC says the May 2019 report, Sexual harassment of LGBT people in the workplace, is the first major study into LGBT sexual harassment at work in Great Britain. It found that more than 2 in 5 (42 per cent) of the LGBT people who responded to the survey said colleagues made unwelcome comments or asked unwelcome questions about their sex life. More than a quarter (27 per cent) reported receiving unwelcome verbal sexual advances.

But two-thirds (66 per cent) said they did not tell their employer about the harassment, and quarter of those said they didn’t report it because they were afraid of being ‘outed’ at work. 

Around 1 in 6 (16 per cent) said the sexual harassment at work affected their mental health. A similar proportion (16 per cent) told the TUC that they had left their job as a result of being sexually harassed – and for 1 in 25, the experience was so unbearable they said it caused them to leave their job without another job to go to.

TUC general secretary Frances O’Grady said: “This research reveals a hidden epidemic. In 2019 LGBT people should be safe and supported at work. But instead they’re experiencing shockingly high levels of sexual harassment and assault.”

She added: “Workplace culture needs to change. No one should think that a colleague being LGBT is an invitation for sexualised comments or inappropriate questions – let alone serious acts of assault. Government must change the law to put the responsibility for preventing harassment on employers, not victims. And anyone worried about sexual harassment at work should join a union.”

Unions say they are determined to keep the issue of prevention of sexual harassment on the agenda at work and in parliament. “Unions will work with government and employers to tackle sexual harassment. Already we know that union members are more likely to report their experience of harassment and have it dealt with satisfactorily,” O’Grady said.

Acting up about harassment

Actor Helen Haines, who took her case against Rainbow Theatre Productions to a tribunal with the support of her union Equity, said the court process was traumatic.

“The way I was aggressively cross-examined by Rainbow’s representative made me feel yet again victimised and intimidated. He raised his voice to me at points, accused me of manipulating events for my own gain and interrupted while I was answering questions, amongst other things,” she said.

“I’ve told people recently who aren’t members, who have experienced things, to join the union because I don’t think they realise what Equity can do,” she says. “If it wasn’t for the union, I wouldn’t have been able to take Rainbow to court. I wouldn’t have been able to afford the solicitor fee, and I got a lot of emotional support. Joining Equity makes you part of a strong community, and gives you access to a great support network.”

Helen went to court, won her hearing against the company, and was awarded £10,524.

Call to make employers prevent sexual harassment

The TUC, women’s rights organisations and charities launched a joint campaign calling on the government to introduce a new law to make employers responsible for protecting their staff from sexual harassment at work.

Announcing the initiative on 26 June, the TUC said its research found that more than half (52 per cent) of women – and nearly seven out of ten LGBT people – have experienced sexual harassment at work.

But under current law there is no legal duty on employers to take proactive action to prevent harassment happening in their workplaces. Instead, the onus is on the victim of the sexual harassment to report it to their employer after it has happened.

Four out of five (79 per cent) women who have been sexually harassed at work do not feel able to report it to their employer – meaning harassment continues unchecked in workplaces across the UK.

With the government set to launch its consultation on tackling sexual harassment soon, the TUC ‘This is not working’ alliance – backed by organisations including the Fawcett Society, Action Aid, Amnesty and Time’s Up – wants to see the law changed so employers have a legal duty to take preventive measures to ensure their workplaces are harassment-free.

The new duty would be supported by a code of practice, explaining exactly what steps bosses need to take to prevent sexual harassment – such as carrying out mandatory training for staff and managers, and having clear policies. The alliance says this simple step would make a huge difference practically. It would mean that the burden of dealing with sexual harassment would be shifted from individuals to employers. The alliance says this would change workplace cultures and help end the problem once and for all.

TUC general secretary Frances O’Grady said: “It’s shocking that in 2019 so many people experience sexual harassment and assault while at work. The government must strengthen the law to put responsibility for preventing harassment on employers.
“This would shift the burden of tackling sexual harassment away from individuals. And it would help end toxic workplace cultures that silence those who’ve been harassed. We’re calling on everyone who want to stop sexual harassment at work to join us and call on ministers to take action.”

'This Is Not Working’ is an alliance of more than 20 unions, charities and women’s rights organisations. The alliance has launched a petition calling for a new law to make employers prevent sexual harassment in their workplaces.

The organisations in the alliance are Accord, Action Aid, Amnesty international UK, BDA, Business in the Community, Equality Trust, Equity, Fawcett Society, GMB, Imkaan, LGBT History Month, Musicians’ Union, NASUWT, NEU, Not the Job, Pregnant Then Screwed, Rights of Women, RMT, Schools OUT UK, Stonewall, Time’s Up UK, TUC, UCU, UK Black Pride, UNISON, Usdaw, Young Women’s Trust.

Top of the page

Hands off

The #MeToo movement has made sexual harassment a top workplace health and safety concern. But both the safety and equality regulators told Hazards an unequivocal ‘#NotMe’ when it comes to investigating potential problems at work. Meanwhile, the employers that let this harassment happen know they can carry on regardless.