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On 11 July the Government Equalities office issued a consultation document [https://www.gov.uk/government/consultations/consultation-on-sexual-harassment-in-the-workplace] setting out proposals and options for the reform of the law relating to sexual harassment in the workplace.  The background is, of course, wide spread concern and press interest in sexual harassment issues involving certain specific high profile cases and the wider #MeToo movement. It also follows a report by the Women and Equality Select Committee (WESC) which called on government and employers to assume a more active role in tackling the issue.

 Options and proposals identified in the consultation document include

(1) a new preventative duty;

(2) an extension to protections for interns and volunteers;

(3) an extension to protections against third party harassment and

(4) an extension of the statutory time limit for bringing a claim in the Employment Tribunal for Equality Act cases.

The Consultation document expresses the view that the existing Equality Act contains strong protections against sexual harassment in the workplace on the basis that employers are liable for harassment of employees by fellow employees unless they have taken “all reasonable steps” to prevent it. It is also pointed out however that, despite this, there is significant evidence to suggest that the problem remains widespread and that employers are not taking adequate steps to prevent it from occurring. It is stated that work is already underway to introduce a new Statutory Code of Practice that will help employers understand what is expected of them and in particular the intention is to clarify what is specifically required by “taking all reasonable steps” to prevent harassment.  

Preventative Duty

The most significant innovation relates to the possible introduction of a new positive preventative duty on employers to take “all reasonable steps” to protect workers from harassment in the workplace. The duty would involve a significant shift of emphasis in the law from being reactive after incidents of harassment to a requirement to observe a pro-active duty to prevent harassment.  However, because the new duty would require a change to primary legislation, it is stated that it would need “compelling evidence” that the change would be effective in order for the Government to be persuaded that the new duty should be introduced. In terms of enforcement it is stated that action could be taken by the Equalities and Human Rights Commission (EHRC) under its existing powers and that investigations could be triggered in a number of ways including by means of whistle blowing disclosures on the basis that the EHRC is to be added to the list of prescribed whistle blowing bodies shortly. It is also stated that a further option is for dual enforcement by both the EHRC and alternatively by individuals but that it is an “open question” whether individuals would need to allege that an act of harassment had taken place or if a claim could be brought merely on the basis of an allegation of breach of the general duty.  Financial penalties are also discussed and the potential option of adopting the model under TUPE of awards for failure to inform and consult involving a maximum order of 13 weeks gross pay is identified.  An alternative or additional option is stated to involve the introduction of new transparency requirement obliging employers to publish a report on prevention and resolution policies publicly with board sign off to ensure that companies are engaging with this problem at an appropriate level. It is indicated that this measure could be introduced independently or combined with requirements for internal monitoring and reporting for example of rates of harassment complaints and on members of staff who have left the organization citing problems with harassment or wider culture in their exit interviews.

Third Party harassment

While it is stated that the law is clear that employers are vicariously liable for harassment carried out by their own employees, it is acknowledged that this is not the case for third party harassment (such as that by clients, customer or contractors).  It is also noted that the WESC and the EHRC amongst others have recommended that explicit legal protections are strengthened in this area. Options for the formulation of this protection discussed involve determining the number of incidents of harassment that would be required to trigger the protection. It is noted that the equality campaigning group, the Fawcett Society suggests that a single incident should be sufficient while the EHRC view is that it is possible for employers to be aware that harassment is likely to occur without a worker having demonstrated that this happened before. If the system was to involve only one previous incident triggering liability the question arises as to whether the employer would need to have known about this in order for them to be held liable or whether it would be sufficient that they “ought to have known”.

Interns and Volunteers

In relation to protection for interns and volunteers it notes that current protections under the Equality Act are explicitly linked to employment status as defined in the Act and do not cover volunteers and may not cover interns or those on work experience. It is recognized that the power dynamics in the workplace means that such individuals can be particularly vulnerable.  It indicates the intention is to ensure that all interns would be protected but also asks the questions as to whether volunteers should be covered and if so whether the protection should be applied to all types of volunteers while expressing concerns that may involve disproportionate burdens on volunteer organisations and have the effect of reducing the number of volunteering opportunities available.

Time limits for Equality Act cases

Finally, in relation to time limits for Equality Act cases, concerns are identified that the current three month time limit for bringing claims is potentially a significant barrier to justice.  Special considerations potentially applying to sexual harassment cases are identified as evidence that in such cases it may take some time for individuals to come to terms with the events or to be able to identify an unlawful act. However, the view is expressed that is not appropriate to confine review of time limits to sexual harassment claims only and any extension would apply to Equality Act cases generally but not to other types of employment claims such as unfair dismissal. It is stated that there is a “compelling case” for bringing employment claims under the Equality Act in line with other claims under that Act which allow for six months’ time limit such is in the case of equal pay or goods and services.  It is also stated that consideration will be given as to whether the existing legal flexibilities in the three months’ time limit such as an Employment Tribunal’s discretion to extend time on a “just and equitable basis” and the ACAS early conciliation arrangements which temporarily “stop the clock” are sufficient.

Comments

The introduction of a preventative duty to take reasonable steps to prevent sexual harassment in the workplace would be a very significant development for employers however the consultation document indicates potential reluctance on the part of the Government to go down the route. The new duty would inevitably involve another layer or regulation for employers to address. Moreover it may be that the ability of an individual to bring a free standing claim of breach of the duty without an allegation of actual harassment affecting them would be open to abuse by disgruntled employees. This might be compounded if financial penalties similar to those awarded under the TUPE regime for failure to inform and consult of up to 13 weeks’ pay may be awarded regardless of whether loss has actually been incurred. In relation to third party harassment the implications for employers would be very significant if it was not necessary to demonstrate any previous incident before liability could arise. In that context the meaning of the “all reasonable steps” steps defence would assume very great significance.

On 21st July the government also published separate but related proposals by way of response to the consultation on ending unethical use of non-disclosure agreements which have been subject to particular controversy in relation to sexual harassment cases. 

    https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/818324/confidentiality-clause-consultation-govt-response.pdf

The proposals identified appear to have real momentum and are unlikely to go away. That said Boris Johnston’s appointment as Prime Minister may in fact impact the adoption of these measures.  Mr Johnston has announced a moratorium on new legislation for the first one hundred days of his premiership in order to focus on the issue of Brexit. Nevertheless in light of the continuing attention on the issue of sexual harassment employers would do well to take account of these developments and consider them at a senior level as part of its employee relations and wider corporate strategies. We will keep you up to date on developments.

If you have any queries about the above or you organisation’s approach to sexual harassment issues please get in touch with a member of the Employment Team.

Eric Gilligan, Partner.

Chambers Leading Firm 2019

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