Sexual harassment consultation: Six key proposals

On 11 July 2019, the Government Equalities Office launched a technical consultation into the best ways to tackle sexual harassment in the workplace.

On 11 July 2019, the Government Equalities Office launched a technical consultation into the best ways to tackle sexual harassment in the workplace.

The consultation is a follow up to the extensive work done on this issue by the Women and Equalities Select Committee last year and sits alongside a separate consultation on the appropriate use of non-disclosure agreements (NDAs) in settlement agreements when sexual harassment is alleged (for which the Government has just published its response to the consultation).

In parallel to the technical consultation, which appears to be largely aimed at employers, HR practitioners and lawyers, the Government is also running a public consultation through which members of the public are invited to share their ‘lived experiences’ of harassment at work.

The technical consultation acknowledges that the Equality Act 2010 already provides explicit protection against sexual harassment, but cites the #metoo movement as evidence that there is still “a real, worrying problem with sexual harassment”. The document focuses on whether existing laws are operating effectively and explores potential ways to extend and strengthen them.

The key proposals set out in the consultation are as follows:

1. A new preventative duty

The consultation document seeks to bring about a shift in focus; from employers reacting to claims or incidents, to the proactive prevention of workplace harassment (before any unlawful conduct has taken place). The consultation suggests a “new mandatory duty” to protect employees from harassment, which would be enforced by the Equality and Human Rights Commission. The consultation makes clear that enforcement will be focussed on “helping organisations to achieve a positive, equality outcome, rather than catching them out if they fall short”. For example, the EHRC might help an organisation formulate an ‘action plan’ to prevent future incidents. The mandatory duty would be likely to mirror current concepts in the Equality Act; for example, potentially requiring an employer to proactively take “all reasonable steps” to prevent harassment. Currently, the fact that an employer has taken “all reasonable steps” to prevent harassment occurring can be used by an employer as a defence to a particular claim, but there is no mandatory duty in place to take those steps as a matter of course.

2. A new statutory Code of Practice

It is suggested that any new mandatory duty would be supported by a new statutory Code of Practice, which would be taken into account by an Employment Tribunal when considering a harassment claim. The Code of Practice would explain in more detail what taking “all reasonable steps” to prevent harassment might look like; although this is likely to comprise common sense steps such as implementing and reviewing a policy and offering appropriate workforce training.

The consultation seeks to explore whether there should be a financial penalty for breach of the Code. A figure of 13 week’s pay, to align with similar penalties under other employment legislation, is tentatively proposed.

As well as ensuring that the mandatory duty is clear, statutory guidance on this issue might boost employer confidence in using the “reasonable steps” defence when a claim is brought. The consultation paper suggests that employers are often reluctant to pursue this line of argument due to uncertainty about what ‘reasonable’ means in this context.

3. New reporting requirements

One option flagged up in the consultation paper is a requirement for employers to publish or publically report on what policies or strategies they have in place to prevent sexual harassment. Board-level sign off would be required to ensure that “companies are engaging with this problem at an appropriate level”. Reportable figures might include, for example, rates of harassment complaints or numbers of staff who have cited harassment as an issue in exit interviews.

4. Renewed protection against third party harassment

Previously, an employer could be liable for harassment of a member of staff by a third party (such as a customer or client) if the harassment had occurred on at least two previous occasions (the ‘three strikes’ principle). This controversial and little-used rule was scrapped in 2013, and case-law has since confirmed that the Equality Act in fact provides no effective protection against so called ‘third-party’ harassment. The consultation suggests that this protection should be explicitly reintroduced in some form and seeks to explore some important details. For example, should a single incident of third party harassment be enough to trigger liability? Should it matter if an employer actually knew about an incident or is it sufficient that an employer ‘ought to have known’ that a member of staff was at risk of harassment.

5. Extending protection to volunteers and interns

Under Equality Act 2010, protection against harassment (and other types of discrimination) is explicitly linked to employment status. Volunteers are not currently protected, and the Government proposes extending protection to this group (taking into account any disproportionate impact on the charitable sector). It is unclear whether all ‘interns’ are currently protected, as this imprecise term covers a wide variety of disparate working arrangements. The consultation seeks to explore this and suggests that any gaps in protection should be closed.

6. Extended time limits

To address concerns about effective access to justice in harassment claims, the consultation explores the possibility of extending the time limit to bring a claim from three months to six months (as varied by ACAS Early Conciliation). It is suggested that it might be appropriate to apply this longer time limit to all discrimination claims under the Equality Act.

Non-legislative solutions?

In addition, despite the strong legislative focus of the consultation, the Government acknowledges that “the law is not a silver bullet which will fix this problem” and also welcomes thoughts on any non-legislative solutions to the issued raised and the broader issue of workplace sexual harassment. No specific examples are given. But presumably the Government envisages that employers will share examples of best practice or initiatives that have worked well in particular sectors or organisations.

What does this mean for me?

This wide-ranging consultation document is compelling evidence of the Government’s commitment to tackling the issue of sexual harassment, beyond the attention-grabbing headlines and social media momentum created by the #metoo movement. An issue which some suspected might be a ‘flash in the pan’ is undoubtedly here to stay and seems likely to bring about meaningful legislative change.

Few employers would disagree with the underlying aims of the consultation and, indeed, most already work hard to embed a culture of equality and diversity, and to tackle incidents of sexual harassment robustly when they arise. However, the prospect of yet another reporting duty may feel onerous to some organisations.

The proposals put forward in the consultation seem to strike a reasonable balance between broad best practice principles and the finer details of legislative change. If some or all of them make it into law, protection against sexual harassment in UK law will undoubtedly be both broader and deeper. However, it is important to remember that these are only proposals at this stage, and that the ambitious changes set out in this paper may be diluted or changed in the consultation process.

The consultation closes on 2 October 2019 and is available in full online here.

Louise Singh is a Liverpool based Professional Support Lawyer, supporting the national Employment, Pensions and Immigration Team. If you have any questions or concerns please contact Louise at louise.singh@weightmans.com or speak to your usual Weightmans advisor.

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