The government has published its response to the 2019 consultation on sexual harassment in the workplace.  The consultation was launched following the publication of the Women and Equalities Select Committee (WESC) report on sexual harassment in the workplace in 2018.

 The consultation explored:

• how employers could be encouraged to take steps to prevent sexual harassment in the workplace

•  if employers should be held liable for third party harassment

•  if existing laws provide adequate protection from harassment to interns and volunteers

• if the time limits for bringing a claim to an employment tribunal should be increased from the current 3 months

Preventing sexual harassment in the workplace

The response states a new duty will be imposed on employers to take all reasonable steps to prevent sexual harassment occurring in the workplace; this will be in addition to the obligations under the Equality Act 2010 which holds employers liable for sexual harassment by their workers unless they can show that all reasonable steps were taken to prevent the harassment. The new duty will be accompanied by a statutory code of practice and supplemented by a guide for employers, an approach we have seen in the past.

Individual employees and the Equality and Human Rights Commission (EHRC) will be able to enforce the duty. 

Third party harassment

Employers’ liability for third party harassment was repealed in 2013. The government will be re-introducing protection from third-party harassment and liability on the employer unless they can show they took all reasonable steps to prevent the harassment taking place.

Interns and volunteers

Specific protections will not be introduced for interns and volunteers. Termed as ‘working for free’, interns are believed to be workers and covered by existing anti-harassment laws and introducing specific protections for volunteers, termed as ‘pure volunteers’, it is felt would create disproportionate red tape for the voluntary sector. That said, all responsible employers are expected to ensure all staff, not just employees, are protected. 

Time limits for bringing a claim

The Government will look closely at extending the time limit for bringing claims under the Equality Act 2010 to 6 months.

Next steps and what you can do now

There is no timetable for when any new legislation will come into force; it will be introduced “when parliamentary time allows” so it is likely to be some time away. 

Employers should not, however, do nothing. Employers are well advised to use the time now to re-enforce existing laws throughout the workforce using training and reminders about policies, standards and requirements and consider how the anticipated laws might impact that – especially where third party services are commonly used.  

The preventive nature of existing duties and what we expect will be introduced require employers to be proactive; the steps taken before any incident are as important as the steps after. 

Contractual arrangements should also be considered to ensure there is an obligation to train anyone providing the service as well as to increase the possibility that any liability, awards and costs incurred can be passed along.

Whilst the details are awaited I and my colleagues can help you prepare in good time so you are in the best place once the new rules come in.  We offer many types of training, including anti-harassment training, tailored to the needs of your specific business.  

We can also review the robustness of your existing contractual arrangements, anti-harassment policies and in-house training and provide advice on practical steps you can take to protect employees and yourself from the risk of a claim. We can also help if you do receive a complaint or, worst case, a claim.

If you would like to receive further information or discuss how BLHR can help you on this topic or others please contact me at sarah.shah@birkettlong.co.uk.

Useful links

1.    https://www.gov.uk/government/consultations/consultation-on-sexual-harassment-in-the-workplace/outcome/consultation-on-sexual-harassment-in-the-workplace-government-response

2.    https://www.equalityhumanrights.com/en/publication-download/sexual-harassment-and-harassment-work-technical-guidance