Sexual harassment continues to feature regularly in the headlines, spurred on by the now familiar #MeToo movement, and reinforced by new campaigns such as Time’s Up (#TimesUpNow – a campaign aimed at ending gender equality) and #ThisIsNotWorking (TUC’s campaign to tackle sexual harassment, following research it commissioned which found that 1 in 2 women have experienced sexual harassment in the workplace).
We have previously written about a report by the Women and Equalities Select Committee on “Sexual harassment in the workplace” which urged the government to take a more robust stance against sexual harassment. A number of the report’s recommendations have now formed the basis for a government consultation on sexual harassment in the workplace, which is currently open and runs until 2 October 2019.
In the consultation document, the government outlines that sexual harassment has been against the law for decades, currently under the Equality Act 2010. However, it also acknowledges that the #MeToo movement, as well as other recent reports, have shown that there is “still a real, worrying problem with sexual harassment”.
To tackle this, the government has made a number of key proposals:
1. A preventative duty on employers
The government is exploring the possibility of creating “a new mandatory duty” that would require employers to take proactive steps to avoid harassment. The rationale for a new duty is that it would shift employer liability from after an incident of harassment, to a proactive duty before unlawful conduct has taken place.
This would represent a significant step for employers, since it would require them to play a greater role in the prevention of harassment. The government’s suggestion is that employers would need to “take all reasonable steps to prevent harassment of its employees”.
The implementation of this new proactive duty could signal a big change as enforcement would no longer just be subject to an individual bringing a claim after an incident of harassment; instead, employers could face investigation based on any suspected breach of their new duty. There remains a question mark over who will be able to enforce the proactive duty, with the suggestion of dual enforcement by the Equality and Human Rights Commission (EHRC) and individual employees. However, the report suggests most instances of enforcement would not result in court action but rather in the EHRC working with organisations to create an action plan to avoid future instances of harassment.
New transparency requirements could also see employers needing to publicly publish or report their prevention and resolution policies, perhaps along with figures on rates of harassment complaints or numbers of staff who have cited harassment issues in exit interviews.
2. A new Code of Practice
To support a new mandatory duty, the government is proposing a new statutory Code of Practice to better understand what is expected of them by law and, in particular, what might be considered “all reasonable steps” to prevent harassment.
The government is currently conducting research to identify what the most effective interventions could be to prevent sexual harassment, but these could include implementing, and ensuring all employees are aware of, an equality policy, providing training and, dealing effectively with complaints.
3. Third party harassment
The consultation also considered the issue of employer liability for third party harassment of employees, for example by clients or customers.
Protections against third party harassment were originally included in the Equality Act. However, the legislation included a highly criticised “three-strikes” rule, where in order for an employer to be liable there had to have been two previous occasions where harassment took place about which that employer knew, or ought to have known. As a result, only two EAT rulings were made under the third party provisions and so in 2013 the legislation was repealed. Case law also subsequently confirmed that the Equality Act currently contains no effective protection in cases of third party harassment.
There has been mounting pressure to rectify this position and include explicit legal protection against third party harassment. As such, the government is now considering the reintroduction of legislation which would cover third party harassment and is seeking views on what form this protection should take and when liability should arise. It proposes adopting the “reasonable steps” defence to any provisions for third party harassment.
4. Extending protections: volunteers and interns
Under the Equality Act, protection from discrimination is explicitly connected to employment status. While this covers a wide variety of work relationships, such as employees, apprentices, partners and public office holders etc, the law does not currently cover volunteers and may not cover interns or those on work experience.
The government acknowledges that extending protection to people in these categories may be complicated, and in particular it does not wish to discourage informal volunteering opportunities or wrap them in red tape. However, it also stresses that it is important to get protection right for these groups of people, since they can be particularly vulnerable given their insecure / informal position in the workplace. The consultation therefore seeks to explore how best to balance different needs while ensuring that these groups are appropriately covered.
5. Extending time limits
Finally, the consultation considers extending the time limit for victims to bring a claim to the Employment Tribunal. The current time limit for bringing a claim in the majority of cases is three months from the date of the act complained of. Concerns have been raised that this is too short a period for bringing a claim under the Equality Act and is creating a barrier to justice.
The government is therefore seeking views on whether the current time limit should be extended, for example, to six months. In exploring time limits, the government has confirmed that it is exploring what is appropriate for claims under the Equality Act as a whole, rather than just sexual harassment.
Given the growing mountain of evidence about the extent of sexual harassment problems in UK workplaces, few are likely to disagree with the ambitious aims behind the government’s consultation. If they come into law, the proposals have the potential to bring about significant change to the way sexual harassment is tackled in the workplace. For employers who have already been working hard to embed a culture of tolerance in their workplaces, hopefully the actual impact of any changes is likely to be manageable.
Perhaps the biggest question is to what extent these proposals will actually result in meaningful legislative change. With a change of government since the consultation was published, and Brexit on the horizon, it is entirely conceivable that the proposals could be changed or watered down. I am sure I am not alone in watching this space with interest.
If you require further information about anything covered in this blog, please contact Kathleen Heycock, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, August 2019