Government publishes response to consultation on sexual harassment in the workplace

On 11 July 2019, the Government Equalities Office launched a consultation on how best to tackle sexu-al harassment in the workplace. This followed the government’s response in December 2018 to the re-port on sexual harassment in the workplace by the Women and Equalities Select Committee (WESC) and the launch of a gender equality roadmap on 3 July 2019.

The consultation had two parts. A technical consultation invited detailed responses on the legal framework around preventing sexual harassment in the workplace. This sat alongside a public questionnaire which invited members of the public to submit their views and experiences of harassment to help the government gather insight on the experiences of individuals. The consultation closed on 2 October 2019.

Response to consultation

On 21 July 2021, the government published its response to the consultation. The government’s con-clusions are as follows:

The government will introduce a new duty for employers to prevent sexual harassment in the workplace and will produce accessible guidance for employers to complement this code of practice.

A new legal duty would prompt employers to prioritise prevention of harassment. There will also be a defence available where employers can show they have taken “all reasonable steps” to prevent the harassment from taking place and for an incident to have taken place before an individual can make a claim.

In tandem with the new legal duty, the government will focus on employer action and enforcement. The consultation response highlights the ability of the Equality and Human Rights Commission (“EHRC”) to reach binding agreements with employers who have been found guilty of offences under the Equality Act 2010, with the government expressing its support for such strategic enforcement action and committing in the response to discuss the scope for further EHRC action in this area with its chair and senior executives.

In addition, the consultation response confirms that the government will support the EHRC in developing a code of practice and believes that this will help employers understand their existing duties in this area and whether they have taken “all reasonable steps” to prevent harassment. To complement the new code of practice, the government will produce accessible guidance for employers which will outline what practical steps they can take.

The government will introduce workplace protections against third-party harassment

In 2018, the EHRC and WESC recommended that the government strengthen explicit legal protections against third-party harassment to give unequivocal protection. The government has now committed to doing so.

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. 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.

The government did comment however that to clearly define what all the reasonable steps would be would remove the flexibility for employers to take a proportional approach based on the individual circumstances of the workplace. In addition, it would not be possible to produce an exhaustive list for every workplace. However, the government will work closely to help shape the protection, giving particular consideration to whether it should only apply in situations in which an incident of harassment has already occurred.

The government believes that most of those classified as interns should already be protected under the Equality Act 2010 and it will not extend protection to “pure” volunteers, since this may have undesirable consequences.

The government identified two distinct groups to consider:

  • Those who are “working for free” to gain professional experience and who would likely con-sider themselves to be interns.
  • Those who are “pure volunteers” and give their time for free to support their community or an issue they care about.

The government identified that the first group might be junior in the workplace and particularly vulner-able to harassment. However, the government’s view is that they would and should already be cov-ered by the protections in the Equality Act 2010 (“EqA 2010) since even without payment they would be likely to qualify as workers.

In relation to the second group, the government acknowledged that they should be protected from harassment, discrimination and victimisation. However, it was concerned that extending the protec-tion to volunteers may create a disproportionate level of liability and difficulties for the organisation which outweighs the service they provide. In particular, the government did not want to take any steps which would deter individuals from volunteering or result in organisations dealing with unneces-sary red tape.

On this basis, the government decided not to extend protection under the EqA 2010 to volunteers. However, as a matter of good practice, it confirmed that it expects all responsible employers to have an effective anti-harassment policy covering all staff (including agency workers, consultants, volun-teers and interns), not just employees. Broader issues around which groups are covered by the EqA 2010 are expected to be “an aspect of any wider future review of it”.

The government will look closely extending the time limit to bring a claim under the EqA 2010 to 6 months, bearing in mind the pressures on the employment tribunal service.

The government’s response to the consultation states that the pandemic has put additional pressure on the tribunal service, and that restoring the existing levels of service must be the priority before any additional load is added. It will therefore look closely at extending the time limit, based on the understanding gained through the consultation. In particular:

  • To avoid confusion, any extension would apply to all cases under the EqA 2010, not just har-assment cases.
  • If an extension is introduced, a time limit of six-months is likely to be the most appropriate course of action. This already applies in equal pay cases and does not appear to hinder busi-nesses or prevent them from answering tribunal claims. Conversely, a time limit of 12 months (as advocated for by some respondents) would significantly increase employer liability and may begin to impact the availability of documents and witnesses.

The Moore Barlow view

It has taken the government almost two years to respond to this consultation, which ran between Feb-ruary and October 2019. Having taken so long to consider the responses, the government has largely committed to the proposals it originally made.

However, the government’s pledges are couched in a number of caveats. Neither the duty to prevent sexual harassment in work nor the duty to prevent third-party harassment have been given a firm im-plementation date (although it is noticeable that the former will be introduced “as soon as” parliamen-tary time allows and the latter only “when” parliamentary time allows, which may indicate an order of priority).

No timescales are provided for the production of the statutory code of practice and associated guidance. The commitment to “look closely” at extending time limits for cases under the EqA 2010 is similarly vague. It therefore seems unlikely that we will see a swift change in the law in these areas, despite the length of time that has passed since the consultation was launched.

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