Government reforms (2): Sexual harassment – Government response to consultation 

What do we already know?

We updated you in our July 2019 Newsletter Government reforms (1): Tackling Gender Inequality & Workplace Sexual Harassment Consultation that the Government Equalities Office (GEO) was consulting on sexual harassment in the workplace to see how the existing protections for workers could be strengthened.

The consultation closed on 2 October 2019.

What’s new?

The Government has published its response to the consultation on workplace sexual harassment. The response confirms the Government will:

• introduce a new duty for employers to prevent sexual harassment in the workplace “as soon as” parliamentary time allows;
• discuss scope for further strategic enforcement action by the Equality and Human Rights Commission (EHRC); support the EHRC to develop a new statutory code of practice; and produce accessible guidance for employers on the code (however, no timescales have been provided for this);
• introduce a new duty for employers to prevent third-party harassment in the workplace when parliamentary time allows; and
• look closely at the possibility of extending the time limit for all claims under the Equality Act 2010.

However, the Government will not extend the protections of the Equality Act 2010 to volunteers and interns.

Duty to prevent sexual harassment

Currently, an employer is only liable if an incident of sexual harassment actually occurs and the employer has failed to take preventative steps to avoid this. Under the proposed duty, an employer could potentially be held liable for failing to take “all reasonable steps” to prevent sexual harassment, without the need for an incident to have taken place, thereby placing greater emphasis on the importance of taking preventative action. However, the Government says that during the process of drafting the legislation, it will consult with affected stakeholders to ensure that what is introduced works properly when applied to real workplaces.  Further, it will remain the case that individuals will only be able to bring claims once an incident of sexual harassment has occurred. Only the EHRC will be able to take enforcement action against employers for failing to take all reasonable steps to prevent sexual harassment, without an incident having occurred.

Third-party harassment

There is little detail, at this stage, about what sort of protection will be put in place.  The Government says that it is continuing “to work with stakeholders to help shape the protection”. For example, they will be given further opportunities to comment on whether an incident of harassment having taken place should be a pre-requisite for bringing a claim.

The responses to the consultation highlighted several practical difficulties presented by introducing a liability for employers to prevent third party sexual harassment which is not triggered by a specific incident. In addition, respondents expressed concern that it may be easier to anticipate the likelihood of sexual harassment in some workplaces than others. The Government’s proposed way of balancing the range of possibilities is to introduce a defence of having taken “all reasonable steps” to have prevented third-party harassment.

Volunteers and interns

In the consultation, the Government had identified unpaid staff such as volunteers and interns as being particularly vulnerable to harassment. However, the Government has decided not to extend the protections in the Equality Act 2010 to volunteers so as not to create disproportionate liability and difficulties for small volunteer-led organisations. The Government takes the view that unpaid interns are already likely to be workers and as such protected under the Equality Act 2010 in many cases.

Extending the time limit for bringing Equality Act claims

The Government has committed to “look closely” at extending the time limit for bringing claims under the Equality Act 2010 from three to six months. Although, currently, most claims must be brought within three months, Tribunals have the discretion to extend time limits when they consider it “just and equitable” to do so.

The Government recognises that the three month time limit is particularly problematic in relation to sexual harassment claims, as would-be claimants often miss the deadline because they are dealing with the trauma of the harassment. Additionally, the three month time limit is often incompatible with the length of internal grievance procedures.

However, the Government is concerned not to place additional pressure on the Tribunal service as it is already stretched by having to cope with the effects of the Covid-19 pandemic. The Government says it will “look closely” at extending time limits, without actually committing to action or a timescale.   To avoid confusion, any extension would apply to all cases under the Equality Act 2010, not just harassment cases.

Comment

Given that all of the Government’s commitments depend on changes to the law (which it has said will be introduced “as soon as parliamentary time allows”) it is unlikely that there will be changes any time soon.  However, in the meantime, it may be advisable for employers to start to prepare for the changes.  The technical guidance that the EHRC published in 2020 (available here) is a good place to start as the new Code of Practice is likely to be based on this.  The EHRC guidance puts the responsibility on employers to be more inquisitive about what is going on in their workplaces and recommends steps that employers can take. These include reviewing policies, training employees and managers, carrying out rigorous investigations (even into historic complaints) and conducting risk assessments.