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Education briefing - Government consults on workplace sexual harassment measures

  • United Kingdom
  • Education - Briefings

12-07-2019

In our briefing of 14 June 2019 we provided an update on the latest developments on the use of non-disclosure agreements in harassment and discrimination cases. Whilst the Government’s response to its consultation exercise which ran from 4 March until 29 April 2019 is still awaited, yesterday the Government published a further consultation on sexual harassment in the workplace which closes on 2 October 2019.

This consultation explores introducing a new legal duty on employers to prevent harassment; extending the protections of the Equality Act to volunteers and interns; changing the law in relation to third party harassment and extending employment tribunal time limits for Equality Act 2010 cases.

Furthermore, the Government has promised a new statutory Code of Practice on sexual harassment and harassment at work to help employers “understand and demonstrate that they have taken "all reasonable steps to prevent harassment”. Whilst the consultation does not ask any questions about the Code, it states that the Equality and Human Rights Commission (EHRC) will first release technical guidance on the topic later this year, with plans for it to form the basis of a statutory Code of Practice to be laid in Parliament following the outcome of a consultation exercise.

Should there be a new legal duty to prevent harassment?

The Government states that it believes that the introduction of a statutory Code of Practice, together with an information campaign for employers, will be the most effective way to increase employers’ prevention efforts. However, as it has been suggested that, in order to make employers take their legal responsibilities seriously, a new mandatory duty should be introduced that requires employers to protect workers from harassment in the workplace, the consultation asks whether such a new duty would prompt employers to prioritise prevention.

The consultation states that, if it were introduced, a new duty would not require employers to take any practical steps they are not already expected to take. However, as introducing a new duty would require a change to primary legislation, the Government says that, to take such a significant step, it would need compelling evidence that the change would be effective. As such, this aspect of the consultation may come to nothing.

As an alternative, or in addition, the consultation canvasses the possible introduction of a requirement for employers to publicly report on their harassment policies and any disputes, for example, rates of harassment complaints.

The Government is also consulting on whether, if such a duty were to be introduced, it should be enforceable by individuals as well as the EHRC and the basis on which awards may be made in the case of a breach of the duty.

Harassment of staff by third parties

Last year’s controversial President’s Club scandal illustrated how staff may be harassed by customers and other third parties, not just by co-workers. Until its repeal in 2013, section 40 of the Equality Act 2010 had established a statutory protection against third party harassment that extended to most of the protected characteristics under discrimination law. The CBI has previously backed its reinstatement and the Government is now consulting on whether to do so, albeit on a modified basis.

Before it was repealed, section 40 put an employer under an obligation to take reasonable steps to prevent harassment by third parties where it knew (or ought to have known) that the employee had been harassed by third parties on at least two previous occasions. The consultation proposes reintroducing third party harassment protection, however, moving away from the old formulation which has been criticised for being flawed. The consultation seeks views on whether there needs to be a prior incidence of harassment and, if so, whether employer knowledge should be required to trigger liability, or whether it is sufficient that an employer 'ought to know'. In addition, it proposes that the ‘all reasonable steps’ defence should apply to third party harassment.

Interns, volunteers and tribunal time limits

The Government is also consulting on whether volunteers and interns should be more clearly covered by the workplace protections in the Equality Act (beyond just harassment and on all the protected grounds such as race and disability). Currently, some are not protected, or there is a lack of clarity, as they may not have the appropriate employment status.

The consultation also explores the evidence for extending the existing three month tribunal time limit for bringing any workplace discrimination and harassment case. The Government comments that there is a compelling case for bringing Equality Act claims under the jurisdiction of the employment tribunal into line with the rest of the Equality Act, which allows a six-month time limit in relation to most other claims (e.g. equal pay, goods and services etc.).

The consultation, therefore, asks whether a three month time limit is sufficient for bringing an Equality Act claim to an employment tribunal; if not, what the new limit should be (it gives the options of six months or more than six months) and whether there are grounds for establishing a different time limit for particular types of claim under the Equality Act (such as sexual harassment or pregnancy and maternity discrimination).

Comment

The cautious tone of the consultation, together with its delayed publication (the proposals were first announced in December last year), suggest that the Government is not convinced of the need for wholesale change. In particular, a new legal duty to prevent harassment appears unlikely at present. In addition, the change in Prime Minister may affect the future progress of this consultation.

However, institutions should take heed of proposals to bring back third party harassment protection (given that it will impact on their liability for harassment of their staff by, for example, students, contractors and visitors) and of the new statutory Code of Practice when it is published. Until now, case law has indicated that implementing a policy, providing training and dealing effectively with complaints, in such a way that goes beyond ‘lip service’, may be sufficient to make out the ‘all reasonable steps’ defence. In contrast, a Code is expected to clarify expectations and provide employers with greater certainty.

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