Developments in managing and responding to sexual harassment in the workplace

Ruth:

Hello and welcome to Ashurst Legal Outlook and the next episode in our world at work series. My name is Ruth Buchanan and I'm a partner in Ashurst's London Employment Group. In this episode we're going to be focussing on developments in the ways that employers are managing and responding to cases of sexual harassment in the workplace.

Sexual harassment is an issue that has been at the forefront of the HR agenda for a number of years. However, the dial is moving further now as we are seeing it as an area of much greater focus by regulators around the world and even, in some jurisdictions, potential criminal liability arising for employers if they get it wrong. This means that employers must have robust plansin place to prevent sexual harassment arising in their organisation and today's presenters are going to outline for employers the increasing importance of getting these measures right.

We have a range of speakers from around the world today. I'd like to welcome Julia Sutherland, a partner from our Perth practice; Muriel Pariente, a partner from our practice in Paris; Cristina Grande, Head of Employment in our Madrid office; Juditha von der Heydt, counsel from our Frankfurt practice; Karen Mitra counsel from our Singapore office; and Norman Ibnuaji, a Senior Associate in our Jakarta office. I'm also delighted to be joined by a guest speaker today – Katarina Matulnikova who is the head of employment of the Slovakian practice of the eading law firm Wolf Theiss.

Ruth:

I want to start by giving you a brief update on what is happening on sexual harassment in the UK. In October this year we are expecting new legislation to come into force. Employers will be under an obligation to take reasonable steps to prevent sexual harassment of employees. Interestingly this new duty will sit alongside employees’ existing protections from sexual harassment in the Equality Act It's difficult to say exactly what reasonable steps will look like in practice for every employer although we may learn more from other jurisdictions in this podcast, for example in Australia where I understand there is a positive duty on employers to take reasonable measures to eliminate as far as possible sexual harassment. However, it will certainly include regular training, updating and circulating of HR policies, good whistleblowing channels, and collating and auditing of grievance statistics. I also know of some organisations, who are for example, putting in place "chaperones" at staff events.

This new duty doesn’t give rise to a freestanding claim for employees in the UK. Where an employer has not taken reasonable steps, the Equality and Human Rights Commission will be able to take enforcement action and an employment tribunal will be able to uplift any compensation awarded by up to 25%.

Ruth:

Similar to the UK, I think that Indonesia has also introduced new legislation imposing duties on employers in relation to sexual harassment. Norman, can you talk us through what is happening?
Norman: Thanks very much Ruth, yes, there have been developments in the past two years in relation to sexual harassment in the workplace in Indonesia.

In 2022, the Government of Indonesia enacted Law No. 12 of 2022 on Sexual Violence Crime ("Law 12"). Before the issuance of Law 12, we would need to refer to the provisions on sexual harassment that are generally set out in the Indonesian Criminal Code (which was enacted in 1915). So, this is a significant development.

And last year, the Minister of Manpower issued an implementing legislation of Law 12, namely the Minister of Manpower Decree No. 88 of 2023 on the Guidelines for the Prevention and Handling of Sexual Harassment at Workplace ("2023 Decree"). The 2023 Decree provides for a new obligation for employers to establish a sexual harassment prevention task force.

Ruth:

That’s really interesting Norman so what duties and responsibilities will the task force have and will sexual harassment victims be entitled to any compensation?

Norman:

So the task force shall consist of representatives of employer and employee. The task force's duties and responsibilities are, among others:

• developing and implementing internal policies on sexual harassment,
• receiving and following up on reports and/orcomplaints from victims or reporters,
• investigating any sexual harassment allegation, and
• providing guidance to victims and reporters.

Based on the 2023 Decree, sexual harassment victims are entitled to amends in the form of: additional sick leave during recovery, additional sick leave for counselling, removal of negative employment appraisal which relate to sexual harassment (thisincludes re-employment of the employee if the employee was dismissed), protection from retaliation, and also covering for the medical expenses.

Ruth:

Thanks very much Norman. Staying over in AsiaPac with Karen, I think that there are some fundamental changes happening in Singapore this year with the first ever anti-discrimination legislation. Can you give us some details Karen?

Karen:

Yes certainly Ruth. And while it's big in the sense that this is the first time there'll be dedicated anti-discrimination legislation in Singapore, the obligations themselves shouldn't really come as a surprise to employers, as the introduction of the legislation follows the government's ‘softly softly’ approach to change in workplace relation matters. So we've moved from a general advisory to Tripartite Guidelines and now to actual legislation.

In the first instance, this legislation only covers workplace discrimination and not discrimination in society more broadly. And it does not cover indirect discrimination. It does follow the standard method of having protected characteristics which initially will be age, nationality, sex, marital status, pregnancy status, caregiving responsibilities, race, religion, language, disability and mental health conditions, which is carved out separately.

And the real missing piece from what was already in place here is that now employees have a right to personal remedies against companies and individuals who discriminate as they can bring claims for the employment Claims Tribunal and receive compensation. And that wasn't something that was available under the existing regime.

And importantly, though, in the context of today's discussion about sexual harassment, the legislation includes prohibitions on retaliation against employees who report workplace discrimination and harassment, including sexual harassment. And while the details of the specific actions that are going to be covered by that prohibition haven't yet been released, we expect it may look a little bit like an adverse action in employment type concept. So it'd be much broader protection than simply being terminated from your employment because you've made a complaint.

Ruth:

Thanks Karen and what will actually all of this mean for employers practically ?

Karen:

I think they just need to be ready for the legislation. They need to have the grievance handling processes in place as grievance handling processes will be required, if they're using global policies, which many employees will have done up until now, because there was no legislation that they need to be ready to amend those policies to account for the legislative definition of discrimination, as it will apply in Singapore. And then to follow any specific local requirements for grievance handling.

I think they also need to be aware of the penalties that can be imposed. So it may not just be the civil penalties that we're expecting, as there's still very much the prospect of administrative actions that can be taken by the regulator, such as the curtailment of work visa privileges.On the civil penaltie point, I think the initial guidance says that penalties may be imposed on individuals and not just corporate entities. So that will be “a watch and wait and see”, particularly if there's going to be personal liability of, for example, individuals who engage in harassing conduct, or kind of HR professionals and the like.

Separately employers should be aware that this is just one piece of the puzzle and will sit alongside legislative protection from harassment under the Protection from Harassment Act, which applies more broadly than in relation to employment and really has criminal sanctions. But we do have some time. The legislation is likely to pass in the second half of this year. So as long as people start preparing now there'll be well ready.

Ruth:

Thanks very much Karen. Turning to Julia now, I think that in many ways Australia is leading the way in responding to sexual harassment as not only do you look at it through the employment law lens but also through the work health and safety lens. Since the introduction of the positive duty on employers to take reasonable measures to eliminate as far as possible sexual harassment which I mentioned earlier, what are the authorities doing in practice to manage sexual harassment Julia?

Julia:

Thank you Ruth.

Well, as you mentioned, in Australia, sexual harassment is now very much considered a work health and safety risk, as well as an HR employment matter. And so this means that there are different authorities or regulators that have an interest in ensuring that businesses effectively manage the risk.

So on the one hand, we have the Australian Human Rights Commission (or AHRC as we callit) has for some time had the power to inquire into complaints made by workers and in other areas of public life. But now with the introduction of the positive duty on businesses to take reasonable and proportionate measures to eliminate sexual harassment as far as possible, the AHRC has broader powers to conduct inquiries into a business's compliance with that duty, issue compliance notices and take broader forms of enforcement action than we've seen.

Because the positive duty is in fact relatively new in terms of its commencement, we're still need to wait to see how that evolves. But certainly the powers are broader than they have been.

The AHRC has also issued guidelines for complying with a positive duty, which notes seven standards that it expects from businesses in response to the positive duty. And the first of which, interestingly andI think tellingly, is leadership.

So it's apparent from both the provisions themselves and the guidance material that businesses are encouraged to implement measures to prevent the conduct in connection with work and move ourselves from perhaps thinking in a reactive sense which responds to individual concerns to actually seeing this as a systemic issue that needs to be prevented through management systems.

So at the same time as we've got the Australian Human Rights Commission, our Australian work health and safety regulators recognise that sexual harassment and similar behaviours can give rise to both physical and psychosocial risk, and are asking questions of businesses about how they identify these risks, what risk factors arise within the business and how they eliminate or minimise these risks to health and safety.

And there's no doubt that we have seen an increase in work health and safety regulator activity in relation to matters concerning sexual harassment and similar conduct, particularly in the last 12-18 months. This has taken the form of investigations into allegations of sexual harassment and assault at work, proactive inquiries in relation to organisations’ systems for identifying and managing risk and regulator enforcement action.

And in one example, a work health and safety regulator commenced proceedings against an organisation for failing to produce information to that regulatorduring an investigation about allegations of sexual harassment. The prosecution led to the regulator and that organisation entering into an enforceable undertaking or EU. And by the EU, the organisation has committed to various initiatives to further minimise the risk of sexual harassment from occurring in its workplace. So Ruth, the response has been wide and varied, and we expect that to continue.

Ruth:

Thanks Julia, that’s really interesting. With such proactive enforcement action what are employers in Australia doing to protect themselves?

Yes it’s interesting to see the evolution of this in Australia over the last couple of years. Some of the steps that employers are taking now include bringing human resources and work health and safety functions together to collaboratively identify and manage risks associated with sexual harassment, and most critically to identify appropriate control measures to prevent the conduct from occurring through what may have typically been considered to be work health and safety risk assessment processes.

Once those risk assessment processes are undertaken, we've also seen various ways in which businesses in Australia are consulting with workers about managing the risk. So this consultation may take the form of surveys or small work group sessions, where people are asked for direct feedback on what businesses could do better or differently to manage the risk. Businesses are also looking at how management practices such as organisational leadership, values, standard setting, investigation practices, and of course, policies and procedures can be used in a preventative sense, but it's very much a journey and a number of employers in Australia, are at various places on that journey, Ruth.

Ruth:

Thank you Julia. Let's move to Continental Europe and see how employers are managing and responding to sexual harassment. Katarina, what are you seeing in Slovakia and more generally in Eastern Europe?

Katarina:

Thank you Ruth. In the vast majority of CEE countries, sexual harassment is not a criminal offence, unlike acts of sexual violence. The sexual harassment is prohibited by general anti-discrimination laws and the duties of the employers in terms of measures to be implemented to eliminate discrimination in the workplace differ from country to country. In all of the CEE countries, the employers must take action in reported cases of sexual harassment, meaning investigate the reports or complaints and, depending on the outcome of the investigation, implement appropriate measures, including terminating the employment of the perpetrators. Failure to act may trigger the employer's liability.

The time periods when employers actually can penalise employees for harassment are subjective and objective and differ from days to years. Subjective periods are tied to employer's knowledge that the sexual harassment occurred. Objective periods are calculated from the last act of sexual harassment. So knowledge of the timing is key. The usual question is when the employer becomes aware of the sexual harassment and the simplest response to that is when the employer properly and carefully investigated a notification or report indicating sexual harassment. Interestingly enough, the practice of the countries in terms of investigations differ. Though sexual harassment does not mandatorily fall under the whistleblowing regime in most of the CEE countries, we see the increased volume of reports filed via whistleblowing reporting channels.

With most of the CEE countries having implemented the EU whistleblowing directive, the reporting channels and compliance officers became more visible and the employers' duty to act more pressing due to statutory deadlines applicable to the length of investigations and implementing measures, that being usually 90 days, and penalties.

Many employers use the whistleblowing reporting channels as the only channels to receive any complaints and then triage the complaints depending on their content. The general statutory prohibition of discrimination, including sexual harassment, is then usually contained in the Code of Ethics or other internal regulation of the employer and employers tend to extend the whistleblowing regime to sexual harassment reports. Most of the sexual harassment investigations are externalised to law firms in order to ensure confidentiality and protection of the potential victim. If the sexual harassment was revealed at the workplace, the employers can be penalised and must rethink their preventive measures which apparently failed. This usually includes increased trainings, campaigns encouraging reporting and speak up culture. Employers' should also rethink their general health and safety regulation with focus on improving conditions for creating mentally sound and safe workplaces and pay more attention to the victims by providing psychological support. And the latter usually fails.

Ruth:

Thank you Katarina and it's really interesting to hear that these investigations are being more externalised to law firms or outside investigators because I think that's a trend that we are starting to see more generally across other European countries. So Cristina in Spain employers must have harassment policies but I think that you are seeing an increase in enforcement action. Can you talk us through what employers in Spain are facing?

Cristina:

Yes thanks Ruth. Yes I am seeing an increase in inspections by the Labour Inspectorate ensuring that harassment protocols are being implemented by employers. The Inspectorate is imposing fines where employers are not complying.

So in Spain employers must have two harassment protocols in place. The first is a sexual or gender-based harassment protocol and the other protocol is for harassment on grounds of sexual orientation, gender identity, gender expression and sexual characteristics.

Looking firstly at sexual or gender-based harassment, every company, irrespective of the number of employees, must have such a harassment protocol in place.

Employers in Spain need to have a proactive programme to prevent these kind of conducts so, as Katarina said, also in Spain employers need to carry out internal training, self-awareness campaigns and also from a health and safety perspective, psychosocial risk assessment including the risks of being harassed. If they do not, employers can be criminal liable in cases of harassment because of the changes introduced by the Organic Law 10/2022 in the Spanish Criminal Code.

In relation to the second protocol since the 2 March 2024, companies with 50 or more employees must negotiate a plan for the promotion of equality for the LGTBI community. There must be a protocol for the prevention, detection and action against discriminatory harassment on grounds of sexual orientation, gender identity, gender expression and sexual characteristics.

There has been uncertainty in Spain for employers about the specific content of this protocol because there has been a lack of regulatory guidance. So this has meant that employers have been concerned about being fined by the Employment Inspectorate if they do not have the protocol in place. However, helpfully The Minister of Equality announced that employers will not be fined, at least at this stage, until the content has been clarified by legislation.

Ruth:

That’s certainly a comfort for employers with operations in Spain, thanks Cristina. And Juditha, moving to you, I think that in Germany you have new legislation which deals with the handling of sexual harassment??

Juditha:

Yes, that's correct Ruth. As regards the employer, until recently protection against discrimination, including sexual harassment, only fell in the scope of the reporting channel under the German Act on Equal Treatment.

This Act requires employers to establish complaints boards to allow employees to report incidents covered by the Act.

The regime, however is rather soft and does not provide for stringent deadlines or other formal requirements when it comes to dealing with sexual harassment reports.

Moreover, the Act itself does not provide for fines or sanctions against the employer in case of failure to comply with the requirements under the Act.

This has changed with the implementation of the Whistleblower Protection Act (the WPA), which came into effect end of last year. Employers with more than 50 employees are now required to establish and maintain a reporting office for reporting misconduct that is covered by the WPA, including all violations of German criminal law, such as unwanted physical contact conducted in a sexual manner.

Reports under the WPA must satisfy very stringent requirements when it comes to answering and processing such reports. Moreover, the WPA provides for fines if the employer fails to meet the obligations stipulated under the WPA.

The two reporting regimes (i.e under the German Act on Equal treatment and WPA) lead to several problems in practice, for example whether the employer should now operate different reporting offices under both Acts, which reporting office an employee should contact in the event of a punishable sexual harassment, what applies within a global group etc. In this context, much is still unclear and employers are advised to review their reporting channels and procedures.

Ruth:

Thank you Juditha. And lastly to you Muriel, what is the position on sexual harassment in France?

Muriel:

Thank you Ruth. Sexual harassment has been punishable in France since 1992.And today, sexual harassment is defined dually by both the Labor Code and the Criminal Code. It is defined by repetitive acts or comments with sexual or sexist undertones, violating the employee's dignity. Harassment occurs when these acts or comments offend the employee's dignity because of their humiliating nature, or creates an intimidating situation.

Under French law, employers have a duty to prevent sexual harassment. As part of their specific obligation to prevent sexual harassment and their general obligation to protect employees' health and safety, the employer must take all necessary measures to effectively inform employees about this type of harassment.

Ruth:

What do employers actually do in practice to make sure that they meet their obligation to prevent sexual harassment?

Muriel:

Well Ruth for example, in companies with at least 250 employees, the employer must nominate a representative responsible for providing guidance and information to employees about sexual harassment.
In addition to prevention, employers must react promptly to any reported cases of sexual harassment. An internal investigation could therefore be necessary. The purpose of this investigation is to verify the alleged facts by the employee and may lead to potential disciplinary measures against the perpetrator of the harassment. This investigation is carried out internally by the employer, with the help of the employee representatives such as the Works Council.

In highly sensitive cases, such as those involving the CEO or HR, investigations may be conducted externally by lawyers to ensure the independence of the process. They would then define the order of interviews, identify the individuals to be questioned, and establish the framework for conducting the interviews. Typically, interviews are conducted in a neutral location, such as the lawyer's office, to maintain independence.

Following the investigation, a report is drawn up, which may be produced as part of the procedure in case of litigation. If harassment is confirmed, the employer must take disciplinary action proportionate to the employee's misconduct

Failure to conduct an internal investigation may result in the employer being held liable to pay damages for failing to fulfill his obligation to prevent harassment.

Ruth:

Thank you Muriel. I've really enjoyed hearing how different jurisdictions are dealing with the challenging subject of sexual harassment and I hope that our listeners have too.

I think that there are some key takeaways for employers. Firstly it is not enough for organisations to just have in place policies, procedures and training to deal with sexual harassment in the workplace. Employers need to be proactive in managing the potential risks that may arise. They should be considering implementing measures such as carrying out risk assessments or appointing representatives who champion providing information to employees. Where allegations do arise, thorough and proper investigations should be carried out and employers should think about their reporting obligations to regulators.

Unfortunately we are now running out of time on a subject that we could talk about for hours. So for now let me now thank our panellists, Katarina , Julia, Muriel, Cristina, Juditha, Karen and Norman.

And thanks to you our audience for listening, we hope you found this episode informative.

You can hear more of Ashurst's podcasts, including more episodes from our World @ Work series, by visiting ashurst.com/podcasts. If you don't want to miss future episodes you can subscribe to ‘Ashurst Legal Outlook’ on Apple podcasts, Spotify, or your favourite podcast platform. While you're there, please feel free to leave us a rating or review.

But for now, my name is Ruth Buchanan and on behalf of my co-panellists, thanks again for listening and goodbye for now.