Business Law & Compliance

Sexual harassment in post-Brexit Britain

8 min read

03 October 2018

Employees may risk losing certain protections when the UK leaves the EU.

B Day is drawing closer and without the ability to gaze into a crystal ball no one can predict what will happen once the UK withdraws from the EU. These are tentative times, especially for workers and employees whose rights are currently protected by the EU.

On a wholly different spectrum, allegations of sexual harassment are becoming more prominent, particularly as reported in the media.

Well-known names from around the globe have been accused of all kinds of sexual misconduct in industries prompting the worldwide #MeToo movement.

According to a recent BBC study, at least half of women and 20% of men have been sexually harassed at work.

So what about sexual harassment post-Brexit? Will equality and employment laws continue to protect employees in the workplace? On paper, yes. In reality, perhaps not.

Sexual harassment is prohibited conduct and broadly defined in law as engaging in unwanted conduct of a sexual nature, and the conduct has the purpose or effect of violating another’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for another person.

Current protections include the ability for employers to be held liable if their employees engage in this unwanted conduct against another employee.

The good news

The government has confirmed that pre-existing equality and employment laws will remain in place when the UK leaves the EU. These include protection against harassment, discrimination and victimisation in the workplace.

Good news so far, in principle it looks like Brexit will not have a detrimental effect on employees’ rights at work.

What’s the problem?

Brexit could be treated as an opportunity to deregulate the laws which seek to protect employees in the workplace, particularly those which businesses deem overly sympathetic to employees and/or too expensive for an employer to protect.

As a current member of the EU, UK law must be consistent with or indeed preferable to the EU standard. Upon leaving the EU there will no longer be a requirement for laws to be upheld to a specific benchmark.

Without the protection of the EU legislative regime, equality laws could be amended or even repealed.

This would lead to the decrease of our fundamental equality rights meaning the laws protecting employees against sexual harassment in the workplace could be watered down or taken away altogether.

Then again, there is always a possibility that equality laws could be bolstered post-Brexit. Though, as a number of people cited overly sympathetic EU laws as a reason for wanting to leave the EU, there is unlikely to be an appetite for more red-tape and reinforced equality laws post Brexit.

Without being bound by the decisions of the European courts, the UK will lose the benefit of developments in EU law instead of relying on domestic advances.

As discussed, domestic developments post-Brexit have the potential to be regressive by eroding the current rights enshrined and protected by the EU.

There is also a risk that influential business leaders could lobby and put pressure on the government to get rid of or water-down employment and equality laws which they believe to be unfriendly or a nuisance to businesses.

In addition to sexual harassment laws, pregnancy, maternity, and part-time worker protections are likely to be the first in the firing line for deregulation.

A further concern is the implementation of ‘Henry VIII powers’, which would give the government the power to amend or pass secondary legislation without the usual route of bi-cameral parliamentary scrutiny. It has been argued that allowing such a power would be undemocratic.

These powers could mean that those laws protecting employees from sexual harassment could be unilaterally altered.

An example of this would be to cap damages for harassment claims in the employment tribunal. Currently, there is no cap on damages. This acts as an incentive for employers to ensure employees are protected.

Finally, whilst the current government has pledged to uphold those laws currently enacted, there is a concern that successive governments will not have the same ideals or afford the same value to equality and employment rights.

Looking at worldwide trends and political allegiances, it is not too farfetched to believe that a successive government could lose those ‘red-tape’ laws deemed inconvenient and too business unfriendly.

So… it’s not all bad news. With the recent abolition of employment tribunal fees, bringing claims for sexual harassment is now far more just and accessible without this barrier to entry. It is hoped the abolition of tribunal fees will encourage more claimants to speak up and take action against wrongdoers and those who failed to protect them as employees.

Despite the inclusion of ‘Henry VIII powers’ in the EU (Withdrawal) Act 2018, those exercising such powers must make a statement on “whether the draft legislation amends/repeals/revokes equalities legislation” and “indicating that the minister has had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the Equality Act 2010, so far as required by equalities legislation”.

Consequently whilst there is a fear that laws could be passed without scrutiny, there is some reassurance in knowing that there is an obligation on ministers to consider equality in all circumstances when exercising these powers.

In addition, nothing is likely to change overnight once the UK leaves the EU.

There will be a period of transition where the executive will try to adapt to this enormous constitutional reform. Consultations will take place and both employees and employers should have time to adapt and adjust to any changes to employment and equality laws.

Leaving the EU should not be an opportunity to regress. In these uncertain times, political assurance against the watering down of our equality laws is needed. Particularly as this will have a disproportionately detrimental effect on women in the workplace.

My advice would be to keep an eye out for changes, try to stay up to date on developments and take advice on anything that concerns or affects you. Let’s strive for a happy B-Day.

Giulia Sinibaldi is a solicitor at Vardags.