Yesterday the Government published its long awaited response to the Consultation on sexual harassment in the workplace. Although employers have been bound by non-discrimination and harassment obligations under equalities legislation for many years, these changes will require businesses to put the active prevention of sexual harassment much higher on the corporate risk register.
When parliamentary time allows, new legislation will impose a duty on employers to prevent sexual harassment in the workplace. In addition, the law will be changed to re-introduce liability on employers for third party harassment. Finally, it seems that there will be an extension in the time limits to bring a claim under the Equality Act 2010 from three months to six months.
There is not a great level of detail in the response, but below are the headlines of what we do know at this stage.
A new duty on employers to prevent sexual harassment
Employers will be required to take ‘all reasonable steps’ to prevent sexual harassment. It appears that an incident will need to have taken place before an individual can bring a claim against their employer, although there are mixed messages about this in the response and we will need to wait for further clarity on this point. Employers will already be familiar with the ‘reasonable steps’ defence which can be relied on to avoid liability for the actions of an employee who carries out harassment or discrimination. It is expected that this new duty will ask employers to go further than their existing arrangements to avoid liability. The Government has described this as a ‘reformulation’ of the existing law, but we have yet to see what that means in practice. However, using the language reasonable steps suggests that employers will be given flexibility in how they approach this new preventative duty rather than imposing prescriptive requirements. We do not know at this stage what compensation could be awarded to an employee where an employer breaches the preventative duty.
As a further layer of enforcement to this new duty, the Government intends that there will be more support for the Equality and Human Rights Commission (“EHRC”) to take strategic action and impose legally binding agreements on employers who fail to get this right, referring to a recent example in which an agreement was reached with an employer to improve their approach on workplace harassment.
The EHRC will develop a statutory code of practice which will complement the recent technical guidance and the Government will also introduce ‘accessible’ guidance for employers.
Third party harassment
Employers could historically be liable for harassment of their employees by third parties (such as customers or suppliers), although the provision was repealed in 2013. The Government has now committed to re-introduce protection against third party harassment, although the details on what this will look like have yet to be published. The system which was in place previously was known as the “three strikes rule”, which meant that an employer could not be held liable for the actions of a customer or third party unless there had been two previous incidents. The Government are still considering whether there will need to be at least one incident by a third party before an employer can be held liable, although they do intend to introduce the employer defence of having taken all reasonable steps to prevent the harassment.
Time limits look likely to be extended for all Equality Act related complaints
Whilst it has not been finalised it appears a strong possibility that the Government will extend the time limits for individuals to bring claims in an Employment Tribunal from three months to six months. This appears likely to extend to all Equality Act claims, not just those relating to sexual harassment, which would be a significant departure from the current regime and would create a new interplay between Equality Act claims and other existing employment claims that still require a three month time limit. The response explains that “We will therefore look closely at extending the limit…. we believe, should an extension be introduced, a new limit of 6 months would be the most appropriate course of action.”
Volunteers and Interns
The consultation also considered whether to specifically extend the protections in the Equality Act to interns and volunteers. The Government has decided not to take action here on the basis that they consider (a) most interns would be considered to be workers and therefore already protected by the Equality Act, and (b) genuine volunteers should remain outside the scope of the Equality Act.
For more information on the original consultation please see our previous Law-Now Changes ahead with diversity and inclusion? We also discussed the technical guidance which was published in January 2020 in a previous Law-Now Harassment at work: time for change?
Next steps for employers?
This consultation response should prompt employers to put their harassment policies and procedures at the top (or in some cases back at the top) of their HR priorities for this year. Training and awareness are central to spreading the message across the wider workforce, many of whom may be working remotely. Harassment can still occur in a remote environment although it takes different forms. We discussed this last year in our Law-Now Sexual harassment in the remote working era.
Although we do not know the timescales at this stage for the changes to come into effect, it is clear that a great deal more is going to be expected of employers in relation to preventing workplace harassment. Employers who fail to put preventative steps in place will be at risk of a claim under this new duty, in addition to a claim for workplace harassment. What taking all reasonable steps to prevent harassment will entail will vary according to an employer’s size and resources.
At the very least, it will involve having an up to date harassment policy and ensuring that the workforce are aware of their obligations towards each other through regular equality and respect training (recent case law has reenforced that “one size fits all” training sessions on their own are unlikely to be sufficient here albeit they can be a useful part of an employer’s response, see our previous Law-Now covering this: Time for a refresh: is your race equality training fit for purpose?).
It is also important that where individuals complain of harassment, these complaints are taken seriously and addressed fairly and in accordance with process. However, we expect that fuller details of what the duty will involve will be set out in the EHRC code of practice.
Finally, while the focus of the Government’s response to the consultation discusses sexual harassment in the workplace, the original consultation document said that ‘the options we discuss in this document would apply equally to all forms of harassment. ‘ However, the response makes no mention of the preventative duty applying to all the protected characteristics under the Equality Act 2010. If the duty was only to relate to sexual harassment this would place protection against sexual harassment at a higher priority than other types of unlawful harassment (such as racial harassment). We await clarity on this issue, and the others highlighted above.
If you require assistance with your planning in this area then please speak to your normal CMS contact.