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Government responds to two workplace consultations: on health and sexual harassment in the workplace

  • United Kingdom
  • Employment law

23-07-2021

 

With the Government’s time and resources having been focused on managing the consequences of the COVID-19 pandemic, various consultations affecting the workplace have been delayed.

However it seems that the Government is now ready to make progress with its plans to “build back better” as 21 July marked the publication of two long-awaited Government consultation responses.

Sexual harassment in the workplace

In our 2019 alert which set out the scope of this consultation, we commented on its cautious tone. Two years later, a more robust approach is noticeable, with the Government making commitments to “shift the dial” on tackling sexual harassment, by prompting employers to take steps which will make a “tangible and positive difference”.

The package of measures which will be introduced includes:

  • the introduction of a mandatory duty on employers to protect workers from harassment and victimisation in the workplace: the Government considers that a new preventative duty would lead employers to prioritise prevention of sexual harassment, and so intends to bring forward legislation to introduce a new duty as soon as parliamentary time allows. It is anticipated that the duty will require employers to take ‘all reasonable steps’ to prevent harassment, and for an incident to have taken place before an individual can make a claim for a breach of the duty
  • a new Equality and Human Rights Commission (EHRC) statutory code of practice on sexual harassment: to complement the technical guidance published in January 2020, which will be supported by accessible guidance on the practical steps employers may take. The Government also expresses its support for the EHRC’s strategic enforcement action and plans to explore the scope for further EHRC action in this area
  • protection from third-party harassment: although the Government has committed to legislate on this issue, it is still engaging with stakeholders to weigh up the options. In essence, this debate centres on whether the protection should only apply in situations where an incident of harassment has already occurred and, if so, how many such incidents are required for liability to apply. No doubt this current uncertainty is influenced by stakeholders’ views about the now-repealed section 40 of the Equality Act 2010 (also known as the “three strikes rule”) which previously established a statutory protection against third party harassment. The Government has indicated, however, that the employer defence of having taken “all reasonable steps” will apply to third party harassment claims

In addition to the above, the Government says it will look closely at extending the time limit for bringing Equality Act 2010-based cases to the employment tribunal from 3 months to 6 months. Another consultation proposal to extend Equality Act protections to volunteers and interns will not be progressed, however, as the Government considers many of the latter group would already be protected, and that extending protections to the former could have undesirable consequences.

“Health is everyone’s business” – Ill-health in the workplace

Possibly the most significant proposals in this 2019 Government consultation paper were:

  • a new right to request work (place) modifications on health grounds
  • reforming Statutory Sick Pay (SSP) to support phased returns to work

Given concerns raised by consultation respondents about how any new right to request might sit alongside the existing duty to make reasonable adjustments, the Government has decided not to proceed with it. Instead it will consider measures to help raise awareness and understanding around existing rights and responsibilities under the Equality Act 2010. With this aim in mind, the Government has asked the Health and Safety Executive (HSE) to develop non-statutory guidance to support disabled people and those with long-term health conditions to remain in work, in addition to managing any related sickness absence. The HSE will also explore introducing statutory guidance in this area.

So far as SSP reform is concerned, however, the Government has concluded that now is not the right time to make changes to the system.

Other commitments which may be of interest to employers include Government plans to:

  • enhance information resources to support COVID-19 returns to work;
  • develop a national information and advice service for health, work and disability;
  • reform the Occupational Health (OH) market and improve employer access to high-quality OH support (largely targeted at SMEs and the self-employed); and
  • further explore opportunities for digital transformation of medical evidence provision, including fit notes.

Comment - sexual harassment and ill-health in the workplace

Employers should take heed of proposals to introduce a mandatory duty on employers to protect workers from harassment and victimisation and to bring back third party harassment protection (given that it will impact on their liability for harassment of their staff by, for example, customers, contractors and visitors).

The new duty would not require employers to take any practical steps they are not already expected to take. However, it should prompt employers to prioritise prevention. Until now, case law has indicated that implementing a policy, providing training at regular intervals 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. All eyes will therefore be on the new Code which is expected to clarify expectations and provide employers with greater certainty.