Whilst sexual harassment in the workplace has been unlawful for decades, the recent #MeToo campaign has highlighted that sexual harassment continues to occur and change is coming.
The Government’s Equalities Office has published its response to the consultation on the legal framework for preventing sexual harassment in the workplace which ran between July and October 2019.
The main findings of the consultation were that many of those who responded were supportive of a new duty to prevent sexual harassment, and believed that it would prompt employers to take positive steps. Another common theme was that the current 3 month limitation period and the impact of trauma for those who experienced sexual harassment were seen as potential barriers to justice; most notably in pregnancy and maternity discrimination.
The Government’s response sets out commitments that:
- they intend to introduce a duty requiring employers to prevent sexual harassment in the workplace, however, the Government’s response does not set out any detail of the proposed new duty;
- it is anticipated 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;
- the Equality and Human Rights Commission (EHRC) is a statutory body responsible for enforcing equality legislation. The EHRC already has the power to enter into legally binding agreements with employers who have been found liable for breaches of the Equality Act (e.g. in 2020 having been found liable for sexual harassment in the workplace, Sainsbury’s agreed to a legally binding agreement with ECHR to take all reasonable steps to prevent employees from committing harassment, this included the requirement to introduce more effective training for its workface and creating discrimination guides for line managers and employees etc.). The Government response supports the EHRC’s strategic enforcement action and will discuss scope for further EHRC action in this area;
- the aim of imposing this new duty is that it will motivate employers to prioritise prevention of sexual harassment in the workplace and that employers will in turn make improvements to workplace practices and culture more broadly;
- support the EHRC in developing a statutory code of practice, which in turn will help employers understand whether they have taken ‘all reasonable steps’ to prevent harassment;
- introduce explicit protections from third-party harassment (e.g. from customers or clients). However, the Government shied away from extending protections to volunteers and interns as it was felt that many would be protected from discrimination in any event as they would likely be classed as a worker. Furthermore, extending the protection to volunteers could have undesirable consequences (e.g. administrative burden on smaller charities);
- consider extending the statutory limitation period to bring any claim under the Equality Act from 3 months to 6 months. The Government was keen to stress that they recognise that the pandemic has put additional pressure on the entire Courts and Tribunal Service, particularly the Employment Tribunal Service, and that restoring its existing levels of service needs to be the priority before additional loading is added; and
- to bring forward legislation to introduce a new duty as soon as parliamentary time allows. It, therefore, appears unlikely that this is going to happen anytime soon.
Please do get in touch to discuss our various training packages, including Workplace Culture and Sexual Harassment, and how we can help ensure your organisation has taken all reasonable steps to prevent sexual harassment from occurring in the first instance. Prevention is better than a cure.
Katie Harris-Wright (firstname.lastname@example.org ~ 01284 717442)