Government to introduce a new duty on employers to prevent sexual harassment
The government has published its response to the consultation on sexual harassment in the workplace. The key issues raised in the consultation and the government’s responses are set out below.
New duty on employers to proactively prevent harassment
Issue: The consultation looked at the question of how employers can be better encouraged to take steps to prevent sexual harassment happening in their workplaces.
Response: The government’s response is that it intends to introduce a new duty on employers to proactively take steps to prevent harassment. This would be a reformulation of the existing law, under which an employer is liable only if an incident of sexual harassment occurs and they have failed to take preventative steps. This proposed change shifts the point of liability to emphasise the importance of taking necessary preventative steps before an event occurs.
The government anticipates that the duty will require employers to take ‘all reasonable steps’ to prevent harassment, and for an incident to have taken place before an individual can make a claim. In terms of timing, the government intends to bring forward legislation “as soon as parliamentary time allows”.
The government will also support the Equality and Human Rights Commission (the “EHRC”) in developing a statutory code of practice to complement the technical guidance published by the EHRC in January 2020. The government believes that this has the potential to significantly improve employers’ ability to engage with their existing duties in this area, and help them to understand whether they have taken ‘all reasonable steps’ to prevent harassment.
To compliment this new code of practice, the government will also produce accessible guidance for employers to outline the practical steps that organisations can take. It will be designed to help proactive employers check that they are taking the most effective action, as well as being a good starting point for organisations that have recognised the need to take concerted action on this issue.
Third party harassment
Issue: The consultation looked at whether an employer should be held liable in situations in which employees are subjected to harassment by third parties (for example, customers and clients) in their workplace, and how this liability should work in principle.
Response: The government’s response says it will introduce workplace protections against third-party harassment “when parliamentary time allows” and that it will continue to work with stakeholders to help shape the protection, particularly on whether it should only apply in situations in which an incident of harassment has already occurred. The government intends to replicate the employer defence of having taken ‘all reasonable steps’ to prevent the harassment, as is currently the case under the Equality Act 2010.
Volunteers and interns
Issue: The Equality Act’s workplace protections does not cover volunteers and the consultation also raised the concern of whether all interns are covered.
Response: The government’s response is that it believes that most of those classified as interns should already be protected under the Equality Act 2010. It will not extend protection to "pure" volunteers, since this may have undesirable consequences (for example organisations finding they have to deal with unnecessary red tape).
The government expects, as a matter of good practice that all responsible employers have an effective anti-harassment policy which covers all staff, not just employees. This means that they should also be considering people like agency workers, consultants, volunteers, and interns, with the aim of ensuring a safe working environment for everyone across their organisation.
Tribunal time limits for Equality Act cases
Issue: The consultation suggested that the current 3 months’ time limit to bring a claim under the work provisions of the Equality Act 2010 (aside from equal pay claims) was a barrier to justice.
In sexual harassment cases time limits may be particularly problematic, given that the trauma experienced can be a significant delaying factor in considering recourse. Nevertheless, the time limit can also be a factor in other Equality Act-based cases. For example, in pregnancy and maternity discrimination cases, it is unlikely that starting legal proceedings will be of paramount concern during what is already a period of significant change in someone’s life.
Response: The government responded by saying that it believes an extension to time limits for Equality Act 2010 cases should be introduced. The government proposes an extension from the current 3 months’ time limit to a new limit of 6 months. This extension is for all Equality Act based cases so as to avoid the confusion which many employers believed would be created by increasing the limit only for specific grounds, and guarantee clarity for both individuals raising claims, and for those responding to them.
It was also clear that, if any extension were to be introduced, doing so across all claims would best ensure that the tribunal process more accurately reflects how complaints and disputes of this nature are handled within the modern workplace.
Implications for employers
Nothing is changing immediately and the government has been noticeably vague about time periods of implementing the changes. However, as we know changes are on the horizon employers may want to start collating information and getting an overview of the current policies and procedures they have in place. Pulling this information together at an early stage should put them in a good position to know which bits of their policies or practices are likely to need addressing when the changes are introduced, and to allow them to do so without significant delay.
