• Eleanor Gow

Preventing Sexual Harassment - New Duty for Employers Planned

Following the rise of the #metoo movement in 2017, the issue of sexual harassment in the workplace became a global talking point. In 2019, the government started a consultation that would explore several areas relating to this topic, including how legislation might respond to the problem. The consultation involved many different interested parties, and the government has now published its response, which is more extensive than had been expected.

So, what’s involved and what can employers expect to see?

A mandatory duty

The government has said that it intends to bring in a new duty that would mean an employer must take ‘all reasonable steps’ to prevent harassment occurring, and an incident must have taken place before a claim can be made. The new duty would serve as an inducement for employers to take positive steps on reducing harassment. It is important to note that this duty will be a high threshold requiring employers to take ‘all’ reasonable steps, not just ‘some’ reasonable steps. Those steps should, of course, be documented in detail so that if a claim does arise, the evidence is available to mount a credible defence.

Volunteers and interns

This new protection from harassment will not, however, be extended to either volunteers or interns, although the consultation identified them as particularly vulnerable to harassment. The government said that interns are, for the most part, already covered by existing legislation as workers and extending full legal protection to volunteers could have a detrimental effect on the Third Sector, as many smaller charities are unprepared for the administrative and regulatory burden this would entail.

The government said that “as a matter of good practice, we would expect all responsible employers to 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.”

Third party harassment

It’s not just harassment from fellow employees or the employer which can make working life miserable – third parties, such as suppliers, contractors or members of the public can carry out sexual harassment.

Provisions against third party harassment were included in the Equality Act 2010 (Section 40) but were repealed in 2013, as the government felt they were under-utilised and an unnecessary form of protection.

Now, the government has said that it will reintroduce protection against third-party harassment in the workplace. However, the employer will be able to use the defence that they took all reasonable steps to prevent such harassment. This of course depends on them being able to show evidence that they have done so, which is why all stages of the process should be thoroughly documented.

The tribunal claim time limit

Concerns were raised by respondents to the consultation that the existing time limit of three months to bring a tribunal claim was too short for cases of sexual harassment. The trauma associated with harassment can cause significant delay in bringing a claim. Real life doesn’t always fit neatly into a three-month period.

The government agreed. It said that it was considering extending the 3-month limit to 6 months and this would apply to all cases arising from the Equality Act. This is intended to avoid unnecessary confusion that could arise from different limits for different claims.

There had been suggestions that the limit should be raised to a year, but the government pointed out that this could cause problems with the reliability of recollection and the availability of both witnesses and documents – people may well have moved on and be untraceable, and documents not thought relevant at the time could have been destroyed or lost.

The role of the EHRC

The government is also keen to ensure that the burden of enforcement and pursuit of harassment cases doesn’t fall solely on individual workers; therefore, the role of the Equality and Human Rights Commission (EHRC) will be further encouraged. It will develop a statutory code of guidance that will sit alongside its technical guidance issued in 2020 (https://www.equalityhumanrights.com/en/publication-download/sexual-harassment-and-harassment-work-technical-guidance)

This will facilitate employers’ engagement with existing duties and let them understand what “all reasonable steps” means and whether they have done all that the law requires to offer a robust defence to any claims of harassment.

The code will be complimented by government guidance that can walk employers through the practical steps that can be taken to prevent – or, at the very least, reduce the likelihood of - harassment. The guidance will also be a starting point for organisations who realise that effective and concerted action needs to be taken to improve work practices and corporate culture.

The EHRC has the power to enter into legally binding agreements with employers who have been found liable for breaches of the Equality Act and over the past three years, it has used this power to tackle sexual harassment in the workplace.

The government supports this enforcement action and expects the action taken by the EHRC to contribute to the ongoing shift in culture and attitudes to this very serious issue.

What does this mean for employers?

No specific timescale has been set out for when these changes will be introduced; the rather indeterminate phrase “when parliamentary times allows” is used. Even when legislation starts to pass through Parliament, it can be months till it becomes law and even longer for it to come into effect.

Nevertheless, smart employers, recognising that change is coming, will start to plan ahead – the process of change is better managed when begun well in advance. Conversely, hasty change at the last minute is almost always bad for business. The process of gathering information, assessing where the business stands currently, and what steps will be needed both to reach the desired position and to be able to react to the new legislative landscape will stand employers in good stead no matter what shape the new laws eventually take.