The government has published its long-awaited response to the 2019 consultation on sexual harassment in the workplace and we have summarised all the key implications for employers below.
In its response, the government has confirmed that it will introduce a duty on employers to prevent sexual harassment, re-introduce protection from third-party harassment, and consider extending the time limit for claims under the Equality Act 2010 from three to six months.
These actions do require legislative changes and the government has stated that they will be brought in as soon as parliamentary time allows.
This consultation was largely seen as the government’s response to social media’s ‘#MeToo’ movement and a consequence of events such as the now infamous ‘president’s club’ dinner.
Fulfilling the duty to prevent sexual harassment
Currently, an employer can respond to a sexual harassment incident in the workplace by running the statutory defence, providing it can show that “all reasonable steps” were taken to prevent the discriminatory act from occurring.
Once the change has been introduced, an employer’s approach should shift from being reactive to proactive. Although the fine details are yet to be published, it is believed that the actions to constitute the statutory defence will now be considered the minimum standard for employers.
This would most likely involve having robust equality and diversity policies which are linked to the disciplinary policy and applied consistently. It is also likely to include the provision of sufficient and regular training for employees, with this going beyond a 5-minute video that is shown on day one and never seen again. Training should also cover modules on how managers should respond to incidents of alleged harassment.
In addition to this, employers must ensure they have adequate procedures in place where there are clear disparities in power dynamics. The government’s consultation highlights the vulnerability of specific roles in sexual harassment (e.g., volunteers and interns) although this is not limited to these roles only. Instead, it could be as simple as an employee and line manager relationship, or any instances where a junior or low paid employee works directly with those in senior positions.
To help with the implementation of these procedures, it is understood that the Equality and Human Rights Commission (EHRC) will be given increased powers, while developing a new statutory code of practice to supplement existing guidance. This will be supported by further guidance for employers from the government.
Protection from third-party harassment
Another area explored within the consultation was the potential situation where an employee is subjected to harassment by a third party (e.g., customers) in the course of their employment. The focus of this discussion was whether the employer should be held liable in this situation and how this liability should work in principle.
Overall, it has been confirmed that a provision for explicit protection from third-party harassment will be introduced. Little detail has been provided on this, other than the fact employers will still be able to rely on the statutory defence, providing they can show that “all reasonable steps” were taken.
While this is largely to prevent another ‘president’s club’ type incident, it also holds relevance for employers who expect their employees to deal with third parties in any capacity, whether this be in care, sales, or service jobs such as hairdressing.
Extending the time limit for Equality Act claims
Currently, an employee who wishes to make a claim to the Employment Tribunal must notify ACAS of this intention within 3 months less 1 day, except if the claim is for a redundancy payment which is 6 months less 1 day.
However, the new proposals would see claims under the Equality Act 2010 (which governs discrimination and sexual harassment) be brought in line with claims for redundancy payments. Therefore, this gives employees a much longer period in which they can submit harassment claims.
What can employers do to prevent sexual harassment?
Although the specifics are yet to be published, it is recommended that employers read the consultation response in full.
A good culture is the key to preventing sexual harassment, including robust policies on equality, diversity, and discipline, alongside training to ensure all staff are aware of what is deemed unacceptable behaviour.
Open-door policies are also essential to provide a clear reporting process for anyone who experiences harassment in the workplace, with victims being encouraged to come forward and receive support. By adopting this approach, employers are more likely to prevent low-level problems from escalating into larger issues.
For tailored guidance on how to implement preventative measures for harassment in your workplace, including the provision of Equality and Discrimination training, call us today on 0345 076 2288 or send us an email.