Sexual Harassment in the Workplace consultation: the government’s response
The government released its response to the consultation on Sexual Harassment in the Workplace on 21 July 2021.
At the forefront of that response was a pledge to provide “further protections to employees who are victims of sexual harassment in the workplace, whilst also furnishing employers with the motivation and support to put practises and policies in place which respond to the needs of their organisation”. Notably, the response also proposed introducing explicit protection against third-party sexual harassment.
The consultation was a two-stage process running from July – October 2019, which included a technical consultation and a public questionnaire. Of the 4,215 responses to the public questionnaire, 62% of respondents were female, 19% male, 0.2% non-binary or gender fluid and 19% did not specify. Notably, 54% said they had experienced harassment at work.
The response acknowledged that cultural and societal change is also needed to put an end to sexual harassment in the workplace, but it sought to set out some of the legal framework that it deemed necessary to support this.
Protections against third-party harassment
As a result of the consultation, the government has confirmed that it intends to introduce a duty on employers to prevent sexual harassment. This is hoped to encourage employers to take proactive steps in ensuring a safe workplace and the proposal was heavily supported in the responses to the consultation.
The government also confirmed that it would introduce explicit protections from third-party harassment. Previously, under the Equality Act 2010, employers were liable for third-party harassment where they had:
- failed to take such steps as would have been reasonably practicable to prevent it; and
- knew that the employee had been harassed in the course of their employment on at least two other occasions by a third party (regardless of whether it was the same third party on each occasion).
However, these provisions were repealed in October 2013.
The removal of the third-party harassment provisions in 2013 was controversial at the time and, remains so, particularly in light of the third-party sexual harassment at work uncovered by the #MeToo movement. The Equality and Human Rights Commission (EHRC) and the Women and Equalities Select Committee have both repeatedly called for third-party harassment provisions to be reinstated and the government’s latest response appears to indicate that this will now happen. It remains unclear what form the new provisions will take.
Whilst the exact form of any new third-party harassment provisions has not been confirmed, the government has indicated that there is likely to be a defence available to employers where third-party sexual harassment in the workplace has occurred. This is likely to be that the employer has taken “all reasonable steps” to prevent the harassment or similar. The “all reasonable steps” defence is a defence already available to employers in relation to whether they should be held liable for the acts of their employees and many respondents to the consultation agreed that a similar defence would be appropriate.
To assist employers in taking a pro-active approach and understanding whether they are taking “all reasonable steps” to prevent harassment, the government has confirmed its support of EHRC in developing a statutory code of practice in this area. It has also confirmed that, to compliment that new code, it will also produce accessible guidance for employers bringing together employers and academics in the field to set out practical steps that employers can take.
Other proposed changes
The consultation had also been intended to consider whether protections under the Equality Act 2010 should be extended to volunteers and interns. However, the government have decided not to take this any further on the basis that extending them to the former could result in “undesirable consequences” and the latter would likely already be protected.
The response also states that the government will now consider whether the ordinary three-month time limit for bringing sexual harassment at work claims under the Equality Act 2010 should be extended to six months. If the government ultimately decides to proceed with this, it has indicated that the extension to the time limit would likely apply for all Equality Act claims to avoid any confusion caused by having different time limits for different claims.
For the time being, the law in this area remains unchanged, until these changes have been legislated for. The government has stated that these legislative changes will be introduced “as soon as parliamentary time allows”. Employers therefore need to be mindful that these changes are coming and to keep an eye out for exactly how any positive duties on them will be implemented in due course.
Our Employment team is able to advise on all matters relating to sexual harassment at work and will be happy to get you up to speed on your obligations when the legislative changes take effect in due course.
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