Sexual Harassment in the Workplace

By Caroline Cockbain, Associate Director.

Sexual harassment has been unlawful for decades and yet, in recent years, as more and more people perhaps have felt confident about speaking out regarding their experiences (#metoo), it remains clear that it is still an issue for many in the workplace.

The Equality Act 2010 is the most important law on sexual harassment. The Act defines sexual harassment as “unwanted conduct of a sexual nature” which has the purpose or effect of violating dignity or “creating an intimidating, hostile, degrading, humiliating or offensive environment”. A wide range of behaviour can come under this definition, but the common factors are the effect that the conduct has on the victim, and that it is unwanted.

Following the publication of an earlier report by the Women and Equalities Select Committee in 2018, the government carried out a consultation focusing on tackling sexual harassment in all its forms, which ran from July to October 2019. However, shortly after the consultation closed in the Autumn of 2019, and before the government responded on the consultation, life for everyone shifted dramatically as a result of the pandemic.

The government response to that publication, now published this week (Consultation on sexual harassment in the workplace: government response - GOV.UK (www.gov.uk)) confirmed that there is now a chance to think more broadly about the fair treatment and environment that every employee should expect. The government intends to take steps to prompt employers to do more, and to make ‘a positive difference’ in this area, resulting in a safer workplace for all.

The main proposals arising from the consultation are as follows:

1. The government intends to introduce a duty requiring employers to take positive steps to prevent sexual harassment;
2. The government has confirmed that it intends to introduce new protections from third-party harassment (which, we anticipate, will involve employers more closely managing relationships and interactions between staff and clients/customers/other business contacts); and
3. Finally, the government is considering extending the time limit for bringing Equality Act 2010 claims to the employment tribunal from the current 3 months from the date of the discriminatory conduct (or the last in the series of conduct) to 6 months, on grounds that this may allow greater access to justice for those concerned.

The government has confirmed that it intends to legislate to provide for the above changes as soon as possible, but no timetable has been announced at present. We will circulate a further JEL update once more detail is known.

If you would like to discuss this alert, or if you need support on any employment matter, please don’t hesitate to contact a member of the team on 0141 331 5150.