Government intends to introduce a specific duty on employers to prevent sexual harassment

July 23rd, 2021

Anything that minimises sexual harassment in the workplace (or ideally gets rid of it entirely) has to be welcomed. So at first glance, it’s good news that the government has finally responded to the consultation on sexual harassment in the workplace that ran from July to October 2019. The response, while not exactly swift, has been welcomed as the steps proposed should garner bosses across the UK into taking positive steps towards irradicating workplace sexual harassment.

The trouble is, though, that the response is loaded with caveats, and in some instances almost looks like any pro-active actions are being kicked further down the road.
The recommendations include a new positive duty on employers to take ‘all reasonable steps’ to prevent workplace sexual harassment , explicit protections from third-party harassment, and a consideration to double the time limit for claims under the Equality Act 2020 from three months to six months.

A less than robust response

Overall, the government feels that the proposals have been supported by representative groups for both victims of sexual harassment and employers, but the truth is that there is a level of disappointment that the response hasn’t been more robust.

The new duty would be enforceable by the Equality and Human Rights Commission and individual employees. Employers could find themselves liable if they don’t take reasonable steps to ensure the workplace is a safe one and free from sexual harassment for all employees. Many see this as a natural extension of the existing legal position (see below), but with a little more legal clout. The best way to provide further protection would be to introduce a statutory code of practice, and ensure that it’s fully implemented, adhered to and enforced.

What exactly are ‘reasonable steps’?

However, there are those who feel that the ‘reasonable steps’ statement is a little vague. It is suggested that the duty would be enforceable after an incident of sexual harassment. However confusingly, it then goes on to state that there is no need for any incident to take place. The new provisions preventing third-party harassment are also causing some confusion, as the government’s proposal doesn’t go into any real detail of what the ‘explicit protections’ are. There are also no details on the new duty itself, which has left a lot of people wondering exactly what the government’s response to this fundamentally important inquiry really is.

Of course, the extension of the time limit for the Equality Act claims is one aspect of the response that has been roundly welcomed, as it would allow many more people the time they need to bring a case under the current Act. But even this is only a promise to ‘look closely’ at extending the time limit. So even on this relatively simple point there’s no real roadmap for change, just a promise to look at the situation and perhaps propose a recommendation to double the time limit sometime in the future.

When parliamentary time allows…

The consultation also looked at extending protection from sexual harassment to interns and volunteers, but again, this comes with its own problems. Commentators believe that smaller organisations and especially charities could be tied up in red tape if the current legislation were to be extended, and in response, the government has concluded that any extension would be unnecessary, as interns and volunteers like charity workers already have adequate protection. We’re sure that there are interns and volunteers who may fervently disagree with that appraisal of the situation.

The changes are due to happen ‘when parliamentary time allows’ which again, is a little vague. Overall, the response has been muted, with some commentators feeling the government response is toothless at best. How the response to the 2019 consultation moves forward remains to be seen, but it seems that the fight against sexual harassment in the workplace is far from over.

What current protection do workers have against sexual harassment?

The present position is that if a worker is subjected to sexual harassment in the workplace, they can bring a claim for compensation in the Employment Tribunal. That claim can be brought against both the harasser themselves but also the employer on the basis they should be vicariously liable for such harassment. However, the onus is on the worker to prove, on the balance of probabilities, that the alleged harassment took place. An employer will be liable for any sexual harassment undertaken in the course of employment by any of its employees. However, employers already have a defence to any claim if they can establish they took reasonable steps to prevent the harassment taking place. This would include having a clear policy preventing sexual harassment in the workplace, regularly communicating this to staff and, crucially, providing regular training to staff and managers on the policy. It is fair to say that not many employers are able to establish this defence in practice which is why more needs to be done to compel employers to take positive steps to minimise harassment taking place.

If you’re concerned about sexual harassment in the workplace or feel that you’re the victim of abuse, contact an employment law specialist who will be able to give you impartial, no-nonsense advice in complete confidence.