Employers will have a new duty to prevent sexual harassment in the workplace 

As part of the plan to "build back better" when people return to offices and other workplaces, the Government has announced that it will introduce a new duty for employers to prevent sexual harassment and third-party harassment in the workplace (see Consultation on sexual harassment in the workplace: government response, 21 July 2021). 

The Government will also look closely at the possibility of extending time limits for claims under the Equality Act 2010 from 3 to 6 months.

Background

The Government's response comes two years after the consultation on sexual harassment in the workplace took place in 2019.  The consultation looked at:

• Introducing a new mandatory duty on employers to protect workers from harassment and victimisation in the workplace;
• Strengthening and clarifying the laws in relation to third-party harassment;
• Whether interns are adequately protected by the Equality Act 2010 (Act) and the possibility of extending protection under the Act to volunteers; and
• Extending employment tribunal time limits in the Act from 3 months to 6 months.

There were 133 responses to the consultation on the legal framework around preventing sexual harassment in the workplace (Part 1), of which 19 were employers and 36 were sector/other professional groups.

There were 4,215 responses to a public questionnaire designed to gather insight on individual responses (Part 2), of which 54% had experienced harassment and 62% (2,611) were from women.

Government response 

The Government has confirmed that it will:

Introduce a new duty requiring employers to prevent sexual harassment, to encourage employers into taking positive proactive steps to make the workplace safer for everyone (as soon as parliamentary time allows)

It is expected that employers will be required to take ‘all reasonable steps’ to prevent harassment, and that an incident will need to have occurred before an individual can make a claim.  The Government will engage with affected stakeholders to ensure that the new legislation works properly when applied to real workplaces.

To increase employer understanding and awareness, the Government will discuss scope to further the Equality and Human Rights Commission's (EHRC) strategic enforcement action and will support the EHRC in developing a statutory code of practice (Code), as recommended by the Women and Equalities Select Committee in their 2018 report. The Code will complement the technical guidance published by the EHRC in January 2020 and there will also be more accessible guidance for employers to outline the practical steps that organisations can take.

Introduce protections from third-party harassment (when parliamentary time allows)

Again, the Government will work with stakeholders to help shape the protection, particularly on whether it should only apply in situations where an incident of harassment has already occurred.  

As with the new mandatory duty, 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 Act, noting that this is consistent with the wider approach to sexual harassment legislation. After considering the view expressed by many respondents that all the steps themselves would need to be explicitly outlined, the Government declined to take that forward, concluding that this would remove the flexibility to take a proportional approach based on the individual circumstances of the workplace.

Look closely at extending the time limit for bringing Equality Act 2010 based cases to the employment tribunal from 3 months to 6 months

Of the 100 respondents to this question, 59% thought the current 3-month time limit was too short.  Although the Government acknowledges that taking this step could be beneficial for those bringing sexual harassment cases as well as for others (e.g. in pregnancy and maternity discrimination cases), in light of the additional pressure that the pandemic has put on the employment tribunal service and the need to first restore existing levels of service to the current caseload, for now the Government will continue to look closely at extending the limit. 

The Government declined to extend protections to volunteers, noting that this could have undesirable consequences and concluded that many interns would already be protected under the Act.  

Comment

Although there is no immediate date for when the new mandatory duty will be introduced (other than as soon as Parliamentary time allows, suggesting that it will be in the near future), the consultation response is a reminder that that sexual harassment complaints have renewed focus and that employers must strengthen their efforts to create an environment in which such complaints can be reported and investigated properly.  Certainly, the legacy of the #metoo movement, coupled with large number of employees all navigating a return to the workplace at the same time after more than a year of remote working, is likely to keep the issue of workplace harassment firmly on the agenda for employers well beyond 2021.

The current return to work presents a good opportunity for employers to start setting clear expectations about standards and appropriate conduct in the workplace.  Doing so will help to lay the groundwork to meet the requirements of the new legislation further down the line.  For example, it would be a good idea to review your induction arrangements to make sure that new joiners know the reporting mechanisms that apply.  Contracts with third parties should be checked to ensure that the commitment to anti-harassment measures is shared. Finally, you should ensure that settlement agreements containing non-disclosure provisions include the legally required carve-outs and that their effect is clear. 

If you haven't already, now would be a good time to deliver training – or refresher training - on equality, respect and dignity in the workplace.  The case of Allay (UK) Limited v Gehlen earlier this year provided a clear warning to employers that it is not enough to treat equality and diversity training as a “tick box” exercise after the Employment Appeal Tribunal upheld a ruling that such training had gone “stale” following a two-year period where there was no refresher provided to its employees.  If you would like any help with arranging suitable training for your workforce, please do not hesitate to get in touch.