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Education briefing – Government publishes long awaited response to its consultation on sexual harassment in the workplace

  • United Kingdom
  • Education - Briefings

03-08-2021

 

In our briefing of 12 July 2019 we set out details of the Government’s consultation on whether to introduce changes to the law concerning sexual harassment in the following areas:

• preventing sexual harassment in the workplace

• third-party harassment

• volunteers and interns

• tribunal time limits for Equality Act cases

The consultation closed on 2 October 2019. With the Government’s time and resources having subsequently been focused on managing the consequences of the COVID-19 pandemic, the response to this consultation, as well as others affecting the workplace, has been delayed. However, on 21 July 2021, the Government finally published its response (the Response).

In our 2019 briefing we commented on the cautious tone of the consultation paper. Two years later, a more robust approach is noticeable in the Response, with the Government commenting that, with the pandemic having drastically changed how and where people work, “as we begin to map out the future of the workplace we have the chance to think more broadly about the fair treatment and environment every employee should expect”. The Government intends that the steps it plans to take will help to “shift the dial” on tackling sexual harassment, by prompting employers to take steps which will make a “tangible and positive difference”.

In this briefing we highlight the Government’s intentions in relation to the four areas of the consultation and the next steps. The key proposals are:

• to legislate to introduce a new duty on employers to protect workers from harassment in the workplace

• to reintroduce workplace protections against harassment by third parties

• to consider extending the current three month time limit for claims of harassment and other types of discrimination under the Equality Act

In a further development relevant to HE providers, the Government published its strategy for Tackling Violence against Women and Girls, on 26 July 2021. In relation to Higher Education, the strategy paper states that:

“The Department for Education will work with the Office for Students to tackle sexual harassment and abuse in higher education settings, including within universities. We are absolutely clear that sexual harassment is in no way tolerable on campuses or in online environments and will continue to encourage higher education providers to review and update their systems, policies and procedures, in line with the Office for Students’ statement of expectations on harassment and sexual misconduct before the next academic year.

These steps also include exploring further options to ensure that all providers see the statement of expectations as the minimum standard for addressing sexual harassment on campus and how the Office for Students can take action against providers who are not doing enough to support students experiencing harassment. This will include the Office for Students considering options for connecting its statement of expectations to its conditions of registration. The Department for Education will also review options to limit the use of Non-Disclosure Agreements in cases of sexual harassment within higher education.”

Preventing sexual harassment in the workplace

In its original consultation the Government was lukewarm on whether to introduce a new mandatory duty requiring employers to protect workers from harassment in the workplace. The Government’s view at the time was that, although this would not require employers to take any practical steps they were not already expected to take, it would require a change to primary legislation and for the Government to take such a step it would need “compelling evidence” that the change would be effective.

60% of respondents to the consultation thought that a new duty would prompt employers to prioritise preventing harassment. The Government agrees with this and intends to bring forward legislation to introduce a new duty as soon as parliamentary time allows. Whilst it acknowledges the views of several respondents, who thought that the law alone is unlikely to be the answer to tackling this issue, the Government believes it is an important and symbolic first step.

The new duty is likely to follow the suggestion in the consultation that employers will be required to take ‘all reasonable steps’ to prevent harassment, and for an incident to have taken place before an individual can make a claim. However, the Government says it will engage with affected stakeholders throughout the process of drafting the legislation, including on the matter of compensation models, to ensure that what is introduced “works properly when applied to real workplaces”.

The issue of compensation for breach of the new duty is not addressed further in the Response. In the consultation the Government proposed that if there should be a financial penalty directly linked to a breach of the duty, this could follow the model under the TUPE regulations where there is a penalty for failure to consult of up to 13 weeks gross pay for each affected individual. There was a very mixed response to this suggestion from those replying to the consultation and it is unclear what the Government’s current thinking is on this point.

The consultation also asked whether powers to enforce any breach should be lie with both the Equality for Human Rights Commission (EHRC) and individuals. Just over half (53%) of respondents to the consultation agreed with this – although many of those in favour raised concerns about the EHRC’s capacity to enforce the duty effectively. The Government’s response to this is that it supports the EHRC’s strategic enforcement action and will discuss scope for further EHRC action in this area with the EHRC chair and senior executives. It is unclear whether individuals will also have powers of enforcement.

Finally in this section, has confirmed that it will support the EHRC in developing a statutory code of practice to complement the technical guidance on sexual harassment and harassment at work published by the EHRC on 15 January 2020 and that, in addition, it will produce accessible guidance for employers. One potential consequence of this code of practice is that, if the code sets out the “reasonable steps” employers are expected to take to avoid harassment, this may provide a framework for employers being able to defend harassment claims by demonstrating that they have taken all reasonably practicable steps to prevent harassment. The Equality Act 2010 already includes this potential defence but it is difficult for employers to successfully rely on because there is no established list of actions which set out what employers need to do in order to satisfy a tribunal that all reasonable steps have been taken.

Third-party harassment

Section 40 of the Equality Act 2010 introduced statutory protection against third-party harassment by making employers liable for harassment of their staff by a third-party (including visitors, contractors and students) where the harassment occurred in the course of the employee’s employment; the employee had been harassed on at least two previous occasions (even if by different people each time); the employer knew, or ought to have known, about the two prior occasions of harassment; and the employer had failed to take ‘reasonably practicable’ steps to prevent the harassment. This provision was, however, repealed in 2013.

In its 2019 consultation, the Government proposed reintroducing protection against third-party harassment but in a revised format. It asked whether employer liability for third-party harassment should be triggered without the need for a previous incident and whether the reasonable steps defence should apply to cases of third-party harassment.

Those who replied to the consultation were evenly split on the issue of whether a previous incident should be required, with 34% of respondents saying no, 33% saying yes and 33% either saying that they didn’t know or not expressing a view. Over two-thirds (68%) agreed that the reasonable steps’ defence should apply to cases of third-party harassment.

In its Response the Government has confirmed that it will reintroduce workplace protections against third-party harassment under the Equality Act 2010 when parliamentary time allows. It is unclear whether a previous incident will be required (as the Government will continue to work with stakeholders on this point) although it seems likely that if this is the case only one previous occasion will be needed, rather than the two under the previous legislation. The Government has said it does intend to include the reasonable steps defence for this type of harassment as well.

Volunteers and interns

At the time of the consultation, the Government’s view was that protection under the Equality Act 2010 (including in respect of sexual harassment) covered most interns but did not extend to volunteers. It therefore wished to better understand these groups’ experiences in order to identify whether any changes in legislation were necessary.

 As a result of the consultation exercise it has identified two distinct groups as follows:

• those who could be termed as ‘working for free’

• those who could be described as ‘pure’ volunteers

In relation to the first group – who would be likely to consider themselves as interns and are working to gain professional experience – the Government’s conclusion is that in almost all cases these groups would, and should, be covered by the existing protections in the Equality Act 2010, as even without being paid they would likely be considered to be workers. Therefore no changes are needed.

In relation to volunteers its conclusion is that extending protections to cover people carrying out ad hoc, informal volunteering, or those supporting small, volunteer-led organisations, could create a disproportionate level of liability and difficulties for the organisation, which could outweigh the service they provide. This view reflects the outcome of the consultation exercise where 50% of respondents felt that the introduction of legislative protections in relation to volunteers would have negative impacts - a figure which rose to 75% across the voluntary sector organisations who responded.

Therefore, whilst the Government says that, as a matter of good practice, it would expect all responsible employers to have an effective anti-harassment policy which covers all staff (not just employees) including volunteers – it appears that no new legislation will be introduced in respect of volunteers.

Finally, it is worth noting that in it its Response the Government points out that where volunteers and interns and others are not covered by the Equality Act 2010, they may still have legal recourse against the organisation that engages them under other legislation, for example, the common law duty of care, health and safety legislation and the Protection from Harassment Act 1997.

Tribunal time limits for Equality Act 2010 cases

Currently, the time limit for bringing claims to an employment tribunal for breach of the Equality Act 2010 is three months from the date of the act of discrimination – though the time limit under the equal pay provisions is six months. Tribunals also have discretion to extend the three month period where it is just and equitable to do so.

In its 2019 consultation the Government asked whether three months was a sufficient period for bringing an Equality Act 2010 claim to an employment tribunal; if not, what the new limit should be (giving the options of six months or more than six months); and whether there should be a different time limit for particular types of claim under the Equality Act 2010 (such as sexual harassment or pregnancy and maternity discrimination).

59% of the respondents to the consultation thought the three month time limit was too short - the most common reasons for this view being that people could miss the limit as they were dealing with the trauma caused by harassment and that the limit is incompatible with the length of internal grievance procedures.

Most of the 37% who felt that the current limit was adequate were employers or from the legal sector. They felt that the position should remain as it is, as the existing process for requesting an extension for out of time claims is sufficient, and that extending the limit would further delay cases, would mean that those involved would not be able to accurately remember events, and employers may not have relevant documentation.

The Government says it will “look closely” at extending the time limit for extending the time limit from three to six months and that this would apply to all Equality Act 2010 cases – not just those of sexual harassment. Again it says it will continue to engage with stakeholders, including those who work in the sector, as well as those representing employee and employer groups as further work on this progresses, as this will help improve its understanding of what impact an extended period could have on litigation behaviours, but also ensure that any new limit would be compatible with the realities of the tribunal process.

Additional responses

In addition to the four specific areas covered in the consultation, the Government also asked whether there were any further interventions it should consider to address the problem of workplace sexual harassment. In its Response, the Government has collated these suggestions and commented on them, as follows:

• Employers should be required to publish their policy for handling sexual harassment. The Government does not specifically comment on this suggestion but there is no indication that the Government intends to legislate on this.

• Employers should be required to publish data in relation to incidents and/or there should be a naming and shaming mechanism (with comparisons made to the treatment of employers not paying the national minimum wage). The Government thinks the drawback of this is that instead of pushing employers to create a workplace where employees feel able to speak out about incidents and report them, it could instead encourage organisations to establish an environment of secrecy where harassment is not properly investigated, for fear that they will be publicly shamed. The Government’s view is that in order for employers to take real positive actions they need to be given “the space to create a more open workplace where reporting numbers may increase, without the fear of external consequences”.

• An external reporting body should be created, so that individuals could raise their cases anonymously, without having to rely on an internal reporting process and that this could help to identify those employers with high levels of incidents that should be further investigated. The Government does not intend to create such a body - it points out that there are already organisations, such as Acas, who are able to offer expert advice and support and it believes that adding another organisation has the potential to create further confusion, and delay individuals from being able to reach the resolution they are seeking.

• That the Government should reinstate the repealed provision of the Equality Act 2010 which enabled employment tribunals to make wider recommendations to an employer. The Government does not intend to do this, stating that the rationale behind repealing this provision has not changed – that employment tribunals are “poorly placed to take on what is effectively the role of an equality consultant”. It also believes that employers will often make changes to their policies and practices as a result of a tribunal finding anyway, without the need for wider recommendations.

Comment

Although the Response brings a bit more clarity to the future direction of legislative change to the law on harassment, it is notable that there is still some uncertainty about the exact nature of the changes and, in particular, the timeframe for introducing these.

It seems clear that third-party harassment will be reintroduced and will include a reasonable steps defence but (possibly) with only one previous incident needed and that the time limit for bringing claims under the Equality Act 2010 may well increase from three to six months.

The most interesting development – given that this represents a change of heart by the Government - is the seemingly inevitable introduction of the new mandatory duty requiring an employer to protect workers from harassment in the workplace. Much of the detail on this, however, is still to be ironed out and it is unclear whether this will make much practical difference to the policies and procedures education institutions already have in place given the importance they already attach to this area.

It also remains to be seen what, if anything, this new duty will add to those employers (like education institutions) already subject to the public sector equality duty to have due regard, in the exercise of its functions, to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010.