The UK Government recently published a long-awaited response to its 2019 consultation on sexual harassment in the workplace. The Government response sets out proposals to strengthen legal protection against sexual harassment in the workplace, indicating that legislation is in the pipeline. While many of the details of the legislation are currently unclear, these changes are likely to be significant for UK employers.
The Government Proposals
In its response, the Government has committed to three main actions:
1. Introducing a new “preventative duty” for employers
Employers will be required to “take all reasonable steps” to prevent sexual harassment. The Government’s response suggests that the new law - to be introduced when parliamentary time allows - will be a “reformulation” of the existing law, placing a more express duty on employers to prevent sexual harassment. As employers will already be aware, the Equality Act 2010 makes employers legally responsible if an employee is sexually harassed at work by another employee, and the employer has not taken “all reasonable steps” to prevent it from happening.
The Government considers that a preventative duty would “lead employers to prioritise prevention”. It is not yet clear how this duty will work in practice. Will a stand-alone cause of action be introduced? What will employees need to establish to show that reasonable steps have not been taken? Where an employer breaches the preventative duty, what compensation will be awarded to an employee?
It is not yet clear whether any new law will apply to sexual harassment, or harassment more broadly, though the Government indicated in the consultation document itself that options discussed would “apply equally to all forms of harassment”.
It is likely that the Government will provide the relevant UK statutory body, the Equality and Human Rights Commission (“EHRC”), with further support to enable it to take strategic enforcement action and enter into legally binding (“section 23”) agreements with employers who are in breach of the Equality Act (without the need for an employee to first bring an Employment Tribunal claim).
The response cited an example of one such recent agreement reached with an employer to improve the way it dealt with workplace harassment. In that agreement, the employer was required, in particular, to:
- prepare a discrimination guide for line managers and employees;
- advise staff on how to deal with harassment through internal communications;
- establish more effective training for its workforce; and
- provide regular reports to EHRC on its progress.
The government will also support the EHRC in developing a statutory code of practice, to complement its “Sexual Harassment and Harassment at Work Guidance” (“EHRC Guidance”) published in January 2020.
2. Creating explicit protections from harassment by third parties
Historically, UK employers could be liable for harassment of their employees by third parties (including customers and suppliers). The relevant law was repealed in 2013. The Government has committed to re-introduce protection against third party harassment when parliamentary time allows.
Again, at this stage, it is unclear what this will look like in practice. The Government’s consultation considered whether liability should only apply if one or more incidents had occurred. Under the old regime, there was a “three strikes rule”; an employer could not be held liable for third party actions unless there had been two previous incidents. It is likely that the employer will be able to rely on a defense where they have taken “reasonable steps” to prevent harassment.
3. Considering extension of time limits for bringing Equality Act-based cases to the tribunal
The Government is also considering extension of time limits for individuals to bring claims in an Employment Tribunal from three months to six months. This follows findings that current time limits may act as a barrier to justice, particularly in sexual harassment cases, where trauma experienced can be a delaying factor in considering recourse.
The Government plans to consider any extension “closely”, but has indicated that restoring employment tribunal service levels to pre-pandemic levels needs to be the priority before additional case loading is added. If the Government does extend the time limits, the indication is that the extension would be introduced for all Equality Act-based cases, in order to avoid the confusion that could be caused by increasing the limit only for specific grounds.
Wider Developments
Pressure on employers to implement robust measures to prevent workplace harassment is coming not only from the legislature, but also the courts. Following a recent 2020 Employment Appeal Tribunal decision (Allay (UK) Ltd v Gehlen) it is particularly important that employers refresh employee equality training regularly and that training is robust. In that case, in which equality and diversity training had been delivered to employees 20 months before the harassment took place, the employer could not rely on the “reasonable steps” defense to a harassment claim. That training was considered to be “stale” and inadequate.
Prevention of workplace sexual harassment, and harassment more broadly, continues to be a global workplace priority. In June 2021, a new International Labour Organization Convention (No. 190) on violence and harassment came into force. Governments that ratify the convention commit to adopting measures to:
- prevent and eliminate violence and harassment in the world of work, including through establishing and strengthening enforcement monitoring mechanisms;
- require employers to take appropriate steps to prevent violence and harassment, including through adopting policies, undertaking risk assessments and providing workforce training; and
- ensure effective means of inspection and investigation of cases of violence and harassment and ensuring access to remedies for victims.
As states commit to these principles, it is possible that we will see more governments strengthening their national legal frameworks to tackle workplace harassment.
How Should Businesses Respond?
Many of the details of the Government’s proposals are still undefined. However, what is already clear is that UK employers’ preventative measures surrounding sexual harassment look set to be open to increased scrutiny and employers that fail to put in place adequate steps are likely to be more vulnerable to claims in the Employment Tribunal.
In preparation for further legislative action, employers might consider taking steps to:
1. Assess risks relating to harassment, including evaluating risks and factors that increase risks. An employer might also consider proactively investigating the extent of any concerns regarding harassment within its organisation, including identifying risk factors such as power imbalances, customer-facing duties, lack of diversity in the workplace and any barriers to reporting.
2. Review relevant workplace policies and procedures on sexual harassment and harassment more broadly, to ensure that practices are robust. EHRC Guidance provides a “checklist” of suggested content for good anti-harassment policies and suggests that policies should be well communicated, reviewed regularly and their effectiveness monitored.
3. Increase awareness of anti-harassment policies by making policies easily accessible, engaging in regular communication with employees on the key messages of such policies, and implementing effective and well-tailored training programmes.
If you have any questions concerning the material discussed in this client alert, please contact the members of our Employment practice.
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