The Government Equalities Office has published its response to the consultation on sexual harassment in the workplace. The consultation ran from 11 July to 2 October 2019.
In its response the Government has confirmed that it will:
- introduce a duty on employers to prevent sexual harassment; re-introduce protection from third-party harassment; and
- consider extending the time limit for claims under the Equality Act 2010 from three to six months.
The legislative changes required to introduce these measures will be put in place “as soon as parliamentary time allows”. They will all apply to England, Wales and Scotland.
Duty to prevent sexual harassment
The response does not set out any detail of the proposed new duty to prevent sexual harassment in the workplace, however, it appears the Government will introduce a duty requiring employers to take “all reasonable steps” to prevent sexual harassment. A proactive duty to prevent sexual harassment would be a subtle 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. The Government believes that the implementation of this duty will encourage employers to take proactive steps to make the workplace safer for everyone.
In order to help employers understand whether they have taken ‘all reasonable steps’ to prevent harassment, the Equality and Human Rights Commission (EHRC) will develop a new statutory code of practice to supplement the existing technical guidance published by the EHRC in January 2020. The Government will also publish employer guidance to complement the code of practice.
Protection from third-party harassment
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.
The Government said in its response that explicit protection from third-party harassment will be introduced. Again there was little detail on how that would operate, other than that employers will have an defence to claims of this type if they are able to demonstrate that they took “all reasonable steps” to prevent harassment occurring.
Exten ding the time limit for equality act claims
The Government have said they will ‘look closely’ at extending the time limit for bringing Equality Act claims in an employment tribunal from three to six months. If an extension were to be introduced it would be for all Equality Act based cases. The Government recognised that the trauma involved in sexual harassment cases may act as a delaying factor in considering whether to make a claim – although acknowledged that the time limits were also problematic for maternity and pregnancy cases as making a claim would not necessarily be a priority at a time of significant change in someone’s life. The Government’s concern at bringing this in now was due to reluctance to put further pressure on a stretched employment tribunal service. It is therefore unlikely that this change will be made in the near future.
Extending protection to interns and volunteers
The consultation also considered extending protection from sexual harassment under the Equality Act to volunteers and interns. While respondents were supportive of the proposal in principle, many raised concerns about the impact this could potentially have on the voluntary sector, particularly the administrative burden this may put on smaller charities.
The Government concluded that explicit protections will not be extended to interns and volunteers. Their reasoning relating to the first category is that many interns are already protected under the Equality Act (as they would generally qualify as “workers” who are protected under the Act with employees). With volunteers, the Government was conscious that volunteering roles and organisations can be widely different. They stated that as a matter of good practice, they would expect all responsible employers to have an effective anti- harassment policy which covers all staff, not just employees. However, they thought that extending Equality Act protection to volunteers could have undesirable consequences, including deterring individuals from volunteering: “extending protections to cover people carrying out ad hoc, informal volunteering, or those supporting small, volunteer-led organisations, could create a disproportionate level of liability and difficulties for the organisation, which could outweigh the service they provide.”
Where volunteers and interns and others are not covered by the Act, they may still have protection under other legislation, for example, health and safety legislation and the Protection from Harassment Act 1997, as well as the common law duty of care.
What does this mean for employers?
Despite suggesting significant change, both the details of the obligations and the time frame for the changes are still vague. As such it is likely to be some time before we see these proposals made into law. Despite this, as we know the changes are on the horizon, businesses will be best placed to start considering what more they can do prevent workplace harassment and also how they can manage the risks of third party harassment. Many employers will already have policies
and procedures in place but it will be worth auditing them against the new requirements. Until we have more detail employers can take a lead from the EHRC technical guidance. As the response acknowledges, public awareness of the issue of sexual harassment has continued to grow since the start of the #MeToo movement in 2017. This only serves to increase the pressure on all employers to do everything they can to improve safety, workplace practices and culture within their own workplaces.
