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Government consults on workplace sexual harassment measures

  • United Kingdom
  • Employment law

11-07-2019

The Government has today published a consultation on: 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.

This is in addition to a previous consultation on the potential misuse of confidentiality clauses in situations of workplace harassment or discrimination. A response to this consultation is awaited. 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”. The Code is expected to come into effect next year.

Should there be a new legal duty to prevent harassment?

The consultation seeks to gather evidence for and against a new legal duty on employers to prevent harassment in the workplace, which could be enforced by employees and, potentially, the EHRC. Another proposal in the consultation would require employers to publicly report on their harassment policies and any disputes, for example, rates of harassment complaints.

However, the Government has indicated that it is against taking such a step, preferring to use a new statutory Code of Practice on harassment to place more of an onus on employers to take action, alongside an information campaign so that employers better understand what might be considered ‘all reasonable steps’ to prevent harassment. As such, this aspect of the consultation may come to nothing.

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Before it was repealed, section 40 put an employer under an obligation to stop repetitive harassment by third parties. The consultation proposes reintroducing new 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 an incidence of harassment and whether employer knowledge should be required to trigger liability. 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 tribunal time limits to bring any workplace discrimination and harassment case under the Act, for example, from three to six months.

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, employers should take heed of proposals to bring back third party harassment protection 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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