While sexual harassment in the workplace has been unlawful for decades, the rise of the #MeToo movement has empowered more people to share their experiences of sexual harassment, bringing to the fore that it remains a significant problem in UK workplaces. Additionally, following lengthy periods of homeworking, employers and workers are considering how workplaces can be transformed into fairer and safer environments for all.
Against this background, the government has published its response to a consultation on workplace sexual harassment launched in 2019. It has committed to a number of measures aimed at tackling sexual harassment, including the introduction of a new duty on employers to take proactive steps which have a tangible and positive difference on reducing the prevalence of harassment in their workplaces.
Introduction of proactive duty to prevent sexual harassment
The government intends to introduce a new duty requiring employers to take action to prevent sexual harassment, in the hope that this will encourage employers to take positive and proactive steps to make the workplace safer. 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.
What comprises “all reasonable steps”?
The consultation highlighted the need for greater awareness and understanding of what constitutes “all reasonable steps” under existing law, especially given the intention that this same test will apply to the proactive duty on employers. Since the consultation closed, the Equality and Human Rights Commission (EHRC) has published technical guidance on employers’ responsibilities and how to prevent and respond to harassment. The government will also support the EHRC to develop a statutory code of practice on preventing sexual harassment in the workplace, which will be complemented by accessible guidance for organisations, outlining practical steps that organisations can take to meet their duty.
Enforcement action limited
Some respondents to the consultation called for individuals to be able to take action to enforce the proposed duty. The government has, however, indicated that individuals will be eligible to bring claims only 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. In light of this, and given the limited scope for EHRC enforcement, many are questioning the extent of the impact that the proposed duty will have on workplaces. Unless the EHRC is provided with better resources and stronger enforcement powers, it is likely that the introduction of a new statutory code of practice on preventing harassment will have a greater impact on reducing sexual harassment in the workplace.
Explicit protections from third-party harassment
In light of responses to the consultation, the government has confirmed that it will introduce workplace protections against harassment by third-parties. There is little detail, at this stage, about what sort of protection will be put in place, with the government continuing “to work with stakeholders to help shape the protection”. It is, for example, unclear whether the protection will apply only in situations in which an incident of harassment has already occurred or whether it will apply to first time instances of harassment. The government has confirmed that it intends to replicate the employer defence of having taken “all reasonable steps” to prevent the third-party harassment.
Extending protection against harassment to a wider group
The consultation asked for views on whether interns are adequately protected by existing protections and whether such protections should be extended to volunteers. In the government’s response, it recognised the “power dynamics” often involved in sexual harassment that mean interns and volunteers can be particularly vulnerable. It distinguished between those described as "working for free" (for example, an unpaid intern) and those termed "pure volunteers" taking part in ad hoc voluntary work (for example, a parent volunteer at a one-off school event).
While the government considers that interns are already adequately protected under the Equality Act 2010, either as an employee or a worker, it will not be extending the same protections to pure volunteers. Its view is that affording volunteers the same protections could have undesirable consequences, by potentially deterring individuals from volunteering or burdening organisations with unnecessary red tape. The government still expects organisations to protect any volunteers from discrimination, harassment and victimisation, and acknowledges that many already do this as a matter of course.
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, tribunal judges 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. This frequently places individuals in the position of being forced to initiate tribunal proceedings before the internal procedure has been resolved. The government recognises that, in most circumstances, it is preferable for employees and employers to try to reach an informal resolution without the need for unnecessary litigation.
There are concerns that extending the time limit would have a negative impact on the accuracy of witnesses’ recollection of events, and on the retention of relevant documentation. The government, however, acknowledges that these issues are not overly problematic in relation to equal pay claims, which already have a six month time limit. In any event, it is expected that an employer would have gathered any relevant evidence as part of their internal resolution processes. As such, the government is confident that extending the time limit from three to six months for most claims would not create a disproportionate burden on business, nor hinder an employer’s ability to defend any claims brought against it.
Proposals which the government will not be pursuing
The consultation considered a number of further interventions aimed at reducing sexual harassment in the workplace, which are not being pursued at present, including:
- A requirement for employers to publish their policy for handling sexual harassment
- Creation of a naming and shaming mechanism, similar to the treatment of employers who fall foul of national minimum wage legislation
- Public disclosure of data in relation to incidents of sexual harassment
- Creation of an external reporting body, to enable individuals to raise cases anonymously without having to rely on an internal reporting process
In most cases, the government’s rationale for rejecting these proposals was the concern that a fear of being publicly shamed would encourage businesses to establish an environment of secrecy, where harassment is not properly investigated. This would run contrary to the aim of creating workplaces where employees feel able to speak out freely about incidents of sexual harassment.
Next steps
All of the government’s commitments which require legislative change, including the new proactive duty on employers to prevent sexual harassment and extending the time limit for bringing tribunal claims, will be “introduced as soon as parliamentary time allows”. The government has used this phrase before in relation to the introduction of a variety of measures to support workers and families, which are to be documented in an Employment Bill first announced in 2019 (see our commentary here). Given the ongoing global health crisis and other calls on parliament’s time, we might be waiting a considerable time before parliament has capacity to implement these new proposals.
Lloyd Davey
Sarah Taylor