Following the 2018 Women and Equalities Select Committee (WESC) report on sexual harassment in the workplace the Government has published a detailed response.
It has concluded that recent disclosures of sexual harassment in the workplace indicate that there are still real and prevalent instances of abuse, predominantly directed at women, with the law failing to protect those who suffer abuse and stop those who abuse.
The government response to the consultation on sexual harassment has set out plans for employers to take steps which will make a tangible and positive difference. The response proposes to introduce a new positive duty upon employers to take 'all reasonable steps' to prevent workplace sexual harassment. This would be a reformulation of the existing law, under which an employer is liable only if an incident of sexual harassment occurs and they have failed to take preventative steps.
If a proactive duty is introduced, it should mirror the existing legal requirement on employers, but shift the point of liability to emphasise the importance of taking necessary preventative steps before an event occurs.
The new duty would be enforceable by both the Equality and Human Rights Commission (EHRC) and by individual employees, with employers potentially liable if they do not take reasonable steps to prevent harassment in accordance with a statutory code of practice. It would be enforceable not only after a sex harassment incident but also without the need for any incident to take place.
The government consultation response also makes further proposals to reform sexual harassment law in other areas:
explicit legal protections against third-party harassment in the workplace. The government continues to work on defining the protection in this area and how an ‘all reasonable steps’ defence can be flexible and proportionate;
confirmation that more transient roles including volunteers and interns have legal protection;
the extension of the time limit to bring employment tribunal discrimination claims from three months to six months.
The government believes that this package of measures will not only strengthen protections for those affected by harassment at work, but will also motivate employers to make improvements to workplace practices and culture which will benefit all employees.
To compliment this new code of practice, the government will produce accessible guidance for employers which will outline the practical steps that organisations can take. It will be designed to help proactive employers check that they are taking the most effective action, as well as being a good starting point for organisations that have recognised the need to take concerted action on this issue.
By increasing employers’ understanding of what they should be doing to prevent sexual harassment will have the additional benefit of helping to improve staff understanding of what they should expect from their employer.
This greater level of awareness and expectation should assist individuals when making the decision about whether to bring a legal challenge when an incident has occurred, and when prevention has not been taken as seriously as it should have been.
The direction of travel in this area of law has been clear for some time and changes to legislation are on their way. Many employer have already taken steps to consider their working practices, but this is by no means common.
All employers will now need to review their policies on sexual harassment and carry out risk assessments of their working practices, effectively seeking to indemnify the risks that they face and take steps to mitigate them.
This new duty will also increase the requirement for regular training to ensure that employers are seen to have taken preventative steps as even greater scrutiny of employees’ behaviours will now be required.
