Sexual Harassment Consultation
We report on the government’s response to the consultation.
The Government has published its response to a recent consultation on sexual harassment in the workplace. The first section of the consultation focused on encouraging employers to prevent sexual harassment in the workplace. Currently, an employer is only potentially liable if an incident of harassment actually occurs. However, the Equality and Human Rights Commission (EHRC) and the Women and Equalities Select Committee (WESC) have proposed introducing a duty requiring employers to take proactive steps to prevent sexual harassment, whereby employers could be held liable for failing to take action to prevent sexual harassment, even if no incident of harassment has occurred. 57% of respondents agreed with this approach. Respondents also proposed other measures, including requiring employers to publish their sexual harassment policies and enabling unions and staff networks to play a greater role in implementing preventative measures.
The second section of the consultation focused on whether employers should be held liable where an employee is subject to harassment from third parties. Respondents were asked to consider whether liability for third-party harassment should be triggered without the need for an incident to have occurred. Responses on this were evenly split, with some respondents arguing that some workplace environments have an intrinsically high risk of third-party harassment, which employers should be obliged to combat. Other respondents felt it would be unfair to hold employers liable for anticipating how unpredictable third parties might behave.
The consultation also addressed the protections that should be afforded to volunteers and interns. Given the transient nature of their roles and the associated power dynamics, these groups are more likely to be vulnerable and less likely to report incidents. While the public felt that interns and volunteers should receive the same protections as employees, concerns were raised about the administrative burden that could be imposed on volunteer-based organisations, particularly in the charity sector. The Government believes that interns are already protected as workers under the Equality Act 2010. By contrast, they are hesitant about affording these protections to pure volunteers. Nevertheless, employers are expected to have effective anti-harassment policies in place covering all staff.
Respondents were also asked to consider the three-month time limit for bringing employment tribunal claims under the work provisions of the Equality Act 2010. Evidence given in the WESC’s Sexual Harassment in the Workplace inquiry suggested that the time limit acts as a barrier to justice. 59% of respondents felt the three months should be extended, citing the current time limit as being incompatible with the length of internal grievance procedures and the time needed to deal with the trauma caused by harassment.
In response to the consultation, the Government is proposing to introduce a proactive duty on employers to take reasonable steps to prevent sexual harassment, with no requirement for any incident to have occurred for liability to arise, enforceable by individual employees and the EHRC alike. It was also legislated to create explicit protection from harassment by third parties. We will keep you posted about such obligations once drafted. It looks like the ECHR will be putting in place a statutory code of practice to support this. Vague promises have also been made in relation to further consideration of extending the time limits for bringing harassment claims to six months. These latter proposals are unlikely to happen anytime soon, but we will let you know when further detail is available.