The UK Government has confirmed that it will introduce a new duty on employers to pro-actively prevent sexual harassment following its recent response to the 2019 Consultation on sexual harassment in the workplace.
This development is unsurprising, given the rising importance of this topic and the increased scrutiny on employers from various quarters, including regulators, parliamentary select committees, the Equality and Human Rights Commission (EHRC), and the press.
However, the devil is always in the detail, and at this stage we have little to go on. The Government has stated that the new obligation will be introduced when parliamentary time allows, so we await the draft legislation with interest. In the meantime, a summary of the key points from the response is set out below. These are:
- Duty to prevent sexual harassment in the workplace
- Third party harassment protection
- Extension of Equality Act time limits
- Interns and volunteers
1. Duty to prevent sexual harassment in the workplace
There will be a new proactive duty on employers to prevent sexual harassment, which will sit alongside the existing anti-harassment protection for individuals under the Equality Act 2010. The Government’s proposal reflects the view that this will lead to employers taking further positive steps to prevent workplace harassment and promote an inclusive working environment.
It is anticipated that the trigger for a claim under the new duty will be the occurrence of a specific incident of harassment. Further, it would seem the current “reasonable steps” defence, which allows an employer to escape liability where an individual employee’s actions amount to discrimination or harassment, is likely to apply in relation to the new duty.
Recent case law has confirmed that the reasonable steps defence is relatively difficult for employers to raise: if there are additional steps that could reasonably have been taken to prevent the harassment complained of, but were not taken, then the defence will fail. There is no prescriptive list of steps for employers to work from, but an employment tribunal would generally expect an employer to have at least introduced a robust equality and anti-harassment policy, which is followed on a day-to-day basis (e.g. through disciplinary action if necessary) and regular tailored and effective staff training. It is unclear whether the bar will be raised further when it comes to the defence in the context of this new duty.
In terms of compensation or other remedies for employees who successfully make a claim, we await further guidance. However, greater involvement from the EHRC is certainly anticipated, allowing it to take strategic action and continue to impose binding agreements on employers who fall foul of the new law. In addition, the EHRC’s Guidance from the start of last year will be supplemented with a new statutory code of practice.
2. Third party harassment protection
Employers may recall the previous third-party harassment regime, under which protection for employees arose after two previous incidents of harassment by a third party (such as a client). Although this was repealed in 2013, the Government has suggested that this protection will be reintroduced, although it is yet to clarify if at least one prior incident of harassment will be required before the employer’s duty to prevent the harassment is triggered. In any case, the reasonable steps defence will also apply, giving employers an opportunity to reduce risk by taking effective organisational action to foster a tolerant and inclusive culture.
3. Extension of Equality Act time limits
Significantly, the Government intends to “look closely” at extending the time limit for bringing all Equality Act claims (including discrimination, harassment and victimisation) brought in the employment tribunal, from three months to six months. This creates the prospect of two-tier timing, with certain claims (such as unfair dismissal) remaining at three months, in comparison to (for example) an age or sex discrimination claim falling under the new six-month limit.
The level of practical complications this may create, such as around the ACAS early conciliation process, remains to be seen. However, the Government views the proposed time extension as a possible solution to address the difficulty for victims of sexual harassment who may be dealing with trauma in the early months following the event.
4. Interns and volunteers
The Government’s response clarifies that there will be no extension of protection from sexual harassment to volunteers and interns. The conclusion in relation to interns is that many will already be protected under the category of workers. As regards volunteers, the perception is that this could result in undesirable consequences (such as an undue administrative burden) for the charity sector.
In short, watch this space
There is as yet no fixed timetable for when these changes will become law but it is possible that draft legislation will be produced in the coming weeks.
We will keep readers updated with developments, as the changes will all have significant impacts on HR and will no doubt increase the risk of claims being asserted against employers.
In the meantime, employers should consider whether they are complying with their duties which are already law, such as the requirement to take reasonable steps to prevent discrimination and harassment.