Update on Sexual Harassment in the Workplace

The Government has, today (21 July 2021), published its response to the consultation on the reform to sexual harassment in the workplace and has committed to introduce some important changes (when “parliamentary time allows”). I have been through the document this evening and summarised the key points below in case you want to update your organisations.

?Key changes proposed

?1.????A new, positive duty requiring employers to prevent sexual harassment at work- currently, an employer is only liable if an incident of sexual harassment occurs and they have failed to take preventative steps. The proposed new law will shift the point of liability to emphasise the importance of taking necessary steps before an event occurs. Therefore, under the proposed duty, employers would still be required to take ‘all reasonable steps’ to prevent sexual harassment in their workplace – just as they are now – but they could potentially be held to account for failing to take these actions without the need for an incident to have occurred. More guidance is clearly required so that employers know what is expected of them. To this point, the Government has said that it will support the Equality and Human Rights Commission (EHRC) in developing a statutory code of practice which will complement the technical guidance published by the EHRC in January 2020.

?2.????Explicit protections from third-party harassment- this will mean that employers are held liable for sexual harassment by third parties (e.g. customers and clients) in their workplace and they will be required to have taken “all steps” to have prevented it from happening. .A key question is whether employers will only be liable when an incident of sexual harassment by a third party occurs or whether they will be liable before that stage if they have not taken “all reasonable” steps to prevent it occurring (like is being proposed for sexual harassment cases involving fellow employees- above). The Government has said that it will work with stakeholders to shape the protection but it does intend to replicate the “all reasonable steps” requirement currently set out in the Equality Act.

?3.????To “look closely” at extending the time limit for bringing a claim under the Equality Act 2010 from 3 months to 6 months- this is on the basis that the trauma experienced can result in a significant delay in an individual deciding to bring a claim. That said, it is clear that the Government does not want to do anything that will overload the Tribunal system any more as it is already drowning in caseloads. The Government is also mindful that if the time limit is extended for sexual harassment claims under the Equality Act it should also extend the time limit for other Equality Act claims, which then will be a huge change. It says that it does not want to create confusion if the time limit is extended only for sexual harassment claims (although we note that the time limit for equal pay cases is already 6 months).

?Note that the Government has said that they do not consider that the same protections should apply to ‘pure’ volunteers. They say that it is clearly right that an individual who gives their time for free to support their community or an issue they care about should be protected from harassment, discrimination and victimisation. However, the Government considers that extending protections to cover people carrying out ad hoc, informal volunteering, or those supporting small, volunteer-led organisations, could "create a disproportionate level of liability and difficulties for the organisation, which could outweigh the service they provide".

?“Interns” are not specifically mentioned either in the new proposals but the Government’s view is that they are caught already by virtue of being a worker.

?All of these commitments will apply to GB (England, Wales and Scotland).

?Here is a link to the Government response: https://www.gov.uk/government/consultations/consultation-on-sexual-harassment-in-the-workplace/outcome/consultation-on-sexual-harassment-in-the-workplace-government-response