Key employment and business immigration developments for employers

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Safeguarding against sexual harassment

With the recent spate of high profile allegations of sexual harassment in politics, Hollywood, the media and business, many employers are reviewing their policies and procedures on the subject. The Equality and Human Rights Commission (EHRC) has also written to FTSE 100 companies and other leading employers asking for evidence of what action they are taking on the issue.

Sexual harassment occurs when a person engages in any form of unwanted conduct of a sexual nature that has the purpose or effect of violating someone's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. This covers a wide range of behaviour – such as unwelcome advances, suggestive looks and sexual comments or jokes. A one-off incident can be enough.

Employers can also be on the hook for sexual harassment by employees (and potentially also third parties), where the employer has failed to take action to prevent it.

Employers reviewing their safeguarding measures in this area, should therefore consider the following:

  • Training for staff: All staff should receive regular awareness training on harassment and what behaviours are and are not acceptable.
  • Training for managers: Managers dealing with sexual harassment complaints should receive specialist training on the issue, including how to support staff involved and when to escalate matters. Increasingly, we are seeing questions being raised by employees in grievances about what training relevant managers have had. Also, in any discrimination or harassment claim, the Employment Tribunal will ask what equality training managers have received.
  • Process for reporting: Employees should have a clear channel through which they can raise concerns. This may be through the grievance procedure or through a separate process, given the sensitive and complex nature of sexual harassment issues. Whatever the case, employees should be clear where they can go to raise concerns. Confidentiality should be maintained wherever possible (although it cannot always be guaranteed).
  • Support for complainants: Offering appropriate support to employees who witness or are victims of sexual harassment is important, whether this is through specifically trained staff internally and/or access to external employee assistance programmes or counselling.
  • Remember the accused: Employees accused of wrongdoing have the right to know the allegations against them and for those allegations to be kept confidential. Before any disciplinary action is taken, there should be a thorough investigation and a proper hearing for the accused to put their case forward. It will often be necessary to separate the parties pending the outcome, and the employer should take care to ensure that neither side feels penalised.

Measures to combat sexual harassment should also be viewed in a wider context of an organisation's culture and encouraging gender equality.

The EHRC has produced helpful guidance for employers dealing with workplace sexual harassment, which can be found here.

Unlimited fines for gender pay gap reporting?

According to some recent press reports, employers could face "unlimited" fines for non-compliance with the new mandatory pay gap reporting rules. However, the reality is perhaps less alarming than the reports might suggest.

Although the pay gap reporting rules do not contain any sanction for non-compliance, the EHRC has the power to enforce them. However, before any fine could be imposed, the EHRC would first have to issue a notice to the employer requiring compliance and enforce that through court orders – only if the employer still failed to comply could fines be imposed.

The EHRC has published its draft policy on enforcing the gender pay gap reporting rules, stating that it will seek an informal resolution at first and then, if this fails, would issue a compliance notice. The EHRC also says it may take action against employers who publish inaccurate data.

Employers caught by the pay gap reporting rules should take their obligations seriously. Many employers who have published incorrect or misleading information have already received negative press and employers who fail to report or publish figures late are also likely to be scrutinised. In scope employers have until 4 April 2018 to report their pay gap figures.

Fit for Work comes to an end

The Government Fit for Work service will end on 31 March 2018 (having stopped taking new referrals on 15 December 2017). Fit for Work was introduced in 2014 in order to address long term sickness, with a free referral for an occupational health assessment for employees who had reached four weeks of sickness absence. However, referral rates have been low, resulting in the decision to close the service, and there is no indication that it will be replaced with any other service. Any employers who used Fit for Work will have to revert to the support they used previously, such as external occupational health providers.

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