Sexual harassment in the workplace has been unlawful for decades but, in recent years, an increasing number of public disclosures by (mainly) women has highlighted that workplace sexual harassment still persists in our society, despite the existence of these legal protections.
Following the 2018 Women and Equalities Select Committee (WESC) report on sexual harassment, the Government Equalities Office launched a consultation on how best to tackle sexual harassment in the workplace. On 21 July 2021, the Government published its response to the consultation.
The consultation consisted of two parts:
The public questionnaire had 4,215 responses. These responses came primarily from women, with just 19% from men. Of the total respondents, 54% said they had experienced harassment at work while 34% said that they had not.
The key response to the consultation is the announcement that the Government will introduce a new positive duty for employers to take ‘all reasonable steps to prevent workplace sexual harassment and third-party harassment in the workplace. It also made a more hesitant proposal to extend the time limit to bring Employment Tribunal discrimination claims.
The new duty would be enforceable by both the Equality and Human Rights Commission (EHRC) and by individual employees. Employers will potentially be liable if they do not take reasonable steps to prevent harassment in accordance with a statutory code of practice. The consultation suggests a defence will be available where employers can show they have taken “all reasonable steps” to prevent the harassment from taking place.
The Government agreed with the majority of the respondents to the technical consultation that introducing a new legal duty would prompt employers to prioritise preventing sexual harassment. The Government has said that it will engage with affected stakeholders throughout the legislation drafting process to ensure that what is introduced works effectively when applied to real workplaces.
The consultation also focused on whether an employer should be held liable in situations where employees are subjected to harassment by third parties, such as customers, whilst working.
There was discussion around whether employers should be liable without an incident actually taking place. Whilst there are certainly employment settings where an employer should be aware that there is a higher likelihood of sexual harassment, for example, in the hospitality industry, there are equally workplaces in which sexual harassment by third parties might reasonably come as a surprise to the employer and would be difficult for them to anticipate.
The Government is yet to decide whether an incident would have to occur before liability kicks in, but has indicated that it will continue to work with stakeholders to help create the most effective protection possible.
There is currently a three month time limit for bringing the majority of claims under the Equality Act 2010 (EqA 2010). Both the EHRC and WESC have recommended that there should be an extension to the time limit for bringing a harassment claim. The Government has indicated that it understands the potential benefits of extending the time limits and that any extension would apply to all claims under the Equality Act 2010, not just harassment claims. A new time limit of six months has been suggested as the most appropriate course of action.
One of the key drivers for extending the time limit is that grievance processes in complex harassment and discrimination cases often take longer than three months to conclude. This means employees must decide whether to issue a claim prior to the determination of the internal procedure.
However, the Government has highlighted the additional strain the pandemic has put on the tribunal system and that getting back on top of the current workload is the priority before considering extending its level of service further.
Whilst the Government has taken an important first step towards making positive changes, these proposals are heavily caveated, and appear unlikely to happen in the immediate future. That being said, in the meantime, employers should take some time to consider their working environment and whether they are doing all they can to help prevent sexual harassment in the workplace. This will help create an open and safe workplace for their staff and it means they will be ahead of the game when this new legislation is introduced.
