The UK government has published its response to a consultation on sexual harassment in the workplace. The consultation ran from July to October 2019 and was, in part, a response to the #MeToo movement. The aim behind the consultation was to gather evidence about whether the current law aimed at protecting people from sexual harassment at work was effective and what more could be done to strengthen it, at a practical level.
Sexual harassment is defined as any unwanted conduct of a sexual nature that makes a person feel intimidated, degraded, humiliated or offended. The Equality Act 2010 provides that employers are legally responsible if an employee is sexually harassed at work by another employee, and the employer had not taken all steps they could to prevent it from happening.
The consultation focused on considering the following issues:
- How best to make sure employers take all the steps they can to prevent harassment from happening;
- Strengthening and clarifying the law so it’s clear employers should protect their staff from being harassed by clients, customers, or other people from outside their organisation;
- Whether interns and volunteers are adequately protected by current laws; and
- Whether people should be given longer to take a harassment, discrimination or victimisation claim to an Employment Tribunal.
In its now published response, the UK government has committed to bolster the law by:
- Introducing a mandatory duty on employers to take reasonable steps to prevent sexual harassment; and
- Creating explicit protection from harassment by third parties, such as customers, clients, suppliers or members of the public.
If sexual harassment takes place in the workplace, there is an existing defence available to an employer; that it took “all reasonable steps” to prevent employees from carrying out such acts. In practice, this would be measured by factors such as what policies the employer had in place, whether these were embedded into the organisation and what training had been provided to employees. This is a defence to a claim rather than a mandatory duty to actively take steps to prevent harassment. The government commitment will therefore go further by requiring all employers to actively take reasonable steps to prevent sexual harassment. The government has also committed to supporting the Equality and Human Rights Commission (EHRC) in developing a statutory code of practice on sexual harassment in order to provide further guidance for employers.
The EHRC envisages that the statutory code of practice could be used in evidence in legal proceedings brought under the Equality Act 2010 and tribunals and courts will have to take into account any part of the code that is relevant to questions arising in proceedings.
There is no specified timeframe for when these legislative changes will come into being; the response provides that it will be as soon as parliamentary time allows. The response also proposes that a defence for employers would be where “all reasonable steps” have been taken, a defence which the government considers to be flexible, and allow for proportionality.
No decision has yet been made in respect of tribunal time limits, but the government has committed to looking closely at whether the time limit for bringing cases to the employment tribunal should be increased from 3 to 6 months, provided those cases concern the Equality Act. This would encompass not just sexual harassment claims, but any falling under the Equality Act, which would also include discrimination on grounds of pregnancy and maternity.
The consultation also considered whether protection from sexual harassment should be extended to volunteers and interns. Whilst respondents to the consultation were generally supportive of extending the protection in principle, it was recognised that this could create an administrative burden on the third sector. The response concluded that volunteers and interns were already protected and therefore such an extension was not needed.
Many individuals and organisations, including the EHRC have welcomed the outcome of the consultation. Whilst the timeframe for the law to be updated remains unclear, employers and their HR departments may wish to anticipate whether existing policies and practices require updating and whether steps could be taken at this stage to implement policies, training and so on with the aim of preventing harassment.
For further information contact our Employment Lawyers on 0141 221 1919 or complete our online contact form.
