The UK government’s long-awaited response to its 2018 consultation on sexual harassment in the workplace has now been published. In this update, we look at the findings made and what may be coming down the line for employers as a result.
The 2018 Women and Equalities Select Committee (WESC) report on sexual harassment in the workplace revealed that it was a persistent and important issue, despite the existence of current legal protections. As a result, the government committed to consult on the issue and have produced an official response to the 2018 report.
The government undertook a consultation from 11 July until 2 October 2019 on sexual harassment in the workplace. This consultation took a two-part form, consisting of a technical consultation with employers on the functionality of the legal framework designed to prevent sexual harassment and a public questionnaire aimed at gathering insight into the experiences of individuals.
The consultation was designed to explore:
- The evidence for the introduction of a mandatory duty on employers to protect workers from harassment and victimization in the workplace
- How best to strengthen and clarify the laws in relation to third-party harassment
- Whether interns are adequately protected by the Equality Act 2010 (the Act) and the evidence for extending the protections of the Act to volunteers
- The views of stakeholders on extending employment tribunal time limits in the Act from 3 months.
The technical consultation invited detailed responses on the legal framework around preventing sexual harassment.
133 responses were received: 124 from organisations in various sectors, and 9 from individuals.
The questionnaire comprised of a set of online questions aimed at gathering insight on the experiences of individuals.
4,215 responses were received, with 54% saying they had experienced harassment at work, 36% saying they had not, and 11% either did not answer or did not know.
A summary of the government findings and response are as follows:
1. New duty to prevent sexual harassment
The government have announced the intention to introduce a duty requiring employers to prevent sexual harassment, in the belief that this will encourage employers to be proactive in making the workplace safer. The majority of participants in the consultation as a whole supported such a measure. This will be accompanied by a new Code of Practice and accompanying guidance for employers.
It is anticipated that the duty will closely follow the formulation suggested within the consultation, with the employers required to take ‘all reasonable steps’ to prevent harassment.
The government will also support the Equality and Human Rights Commission in developing a statutory code of practice, as recommended by the 2018 WESC report. To compliment this, they will also produce guidance for employers on best practice and practical steps.
The early signs are that employers could become subject to a statutory code of practice requiring them to take proactive steps to keep staff safer from harassment by colleagues.
As good practice under the current regime and in anticipation of a proactive duty being introduced, employers should consider arranging workforce training to remind employees of the law in this area, acceptable standards of conduct, the protections for those raising concerns and how reports of sexual harassment will be addressed. These practices and policies can then be adapted and tailored to the new code and best practice guidance, as appropriate.
2. Third-party harassment
There is a further intention to introduce explicit protections from third-party harassment. The functional details will be decided through consultation with stakeholders, but there is no intention to replicate the employer defence of having taken ‘all reasonable steps’, as is currently the case under the Equality Act 2010.
While the functional details are yet to be decided, the principle of employers needing to take proactive steps extends to protecting from harassment by third parties, and employers should therefore incorporate references to third parties into any training or standards of conduct and adapt any existing policies/statements as necessary.
3. Volunteer and intern protections
There will be no explicit extension of protection to volunteers and interns, as they believe that many of the latter group are already protected sufficiently under the Equality Act 2010, and that extending protections to the former may have undesirable consequences, such as a disproportionate level of liability and administrative/organisational difficulties that such obligations may have on the third sector, and particularly smaller charities. This reflected the concerns expressed by companies in the technical consultation.
Despite there being no explicit extension, and the position remaining unchanged in regard to volunteers and interns, it would be advisable and best practice for employers to ensure that they have in place an effective anti-harassment policy and training that covers all staff, not just employees.
Extension of time limit for bringing a claim
The government are going to give further consideration to extending the time limit for bringing a sexual harassment claim from 3 months to 6 months, to account for the trauma experienced by victims leading to a delay in bringing an action.
Employers should ensure that they are investigating all allegations and grievances thoroughly, with detailed records kept, so that they can show all reasonable steps were taken in response to any potential sexual harassment.
The response states that changes requiring legislation will be made as soon as parliamentary time allows. For advice and assistance contact Sarah Collier, Partner and Head of Employment Law.