Sexual Harassment in the Workplace

The government has considered changes in this area, including a consultation on the inappropriate use of Confidentiality clauses (also known as Non-Disclosure Agreements), which took place earlier this year and for which legislative changes are now planned.

As a next step, a new consultation has been commissioned to look at what can be done to reduce and prevent sexual harassment in the workplace. Jessica Clough discusses the proposals that are included in this consultation.

The law

Protection against harassment is provided for employees (including job applicants), workers, apprentices, contract workers and those on vocational training by the Equality Act 2010.

S.26 prohibits unwanted conduct of a sexual nature, or unwanted conduct related to a protected characteristic (such as age, disability, gender reassignment, race, religion or belief, sex or sexual orientation), which has the purpose or effect of violating dignity or creating an intimidating, hostile or offensive environment. It also prohibits less favourable treatment arising from this harassment.

S.109 provides that employers are vicariously liable for acts of discrimination, harassment or victimisation carried out by their employees in the course of their employment.

However, S.109(4) provides employers with a defence if they can show they took “all reasonable steps” to prevent their employees from acting unlawfully. The Equality and Human Rights Commission (“EHRC”) Code of Practice states that “reasonable steps” include implementing and reviewing an equality policy, training workers on this policy and equal opportunities generally, and dealing effectively with employee complaints.

The consultation

The consultation acknowledges that sexual harassment in the workplace "persists at a startling rate in our society". Following on from the Women and Equalities Select Committee (“WESC”) 2018 report on Sexual Harassment in the Workplace, the consultation asks: what more could be done to help everyone thrive at work in a harassment-free environment?

The government has ruled out major legislative changes on the basis that the legal framework of the Equality Act is already sufficiently effective. The consultation focuses on four key areas in which it proposes to make changes. The suggestions put forward below are intended to apply to sexual harassment or harassment on the grounds of any protected characteristic, to discrimination and victimisation.

1. Ensuring employers take all reasonable steps to prevent and respond to harassment in the workplace

The consultation suggests that employers need to do more to address harassment in the workplace. That they are currently failing to do so may be as a result of not being aware of or understanding their responsibilities, or not knowing how to tackle situations effectively when they arise.

To ensure employers prioritise the prevention of harassment it suggests:

a. Creating a new Statutory Code of Practice to clarify the law and provide guidance on what “all reasonable steps” involves so that employers understand their responsibilities and can ensure they have sufficient preventative measures in place. The WESC had recommended this Code should provide guidance on suitable reporting systems and procedures, how to investigate and record complaints (with a presumption all complaints should be investigated unless there is a compelling reason not to), support for victims, and focus on induction processes, training and risk assessments for staff. However, the consultation does not discuss these details so it remains to be seen what aspects from the WESC report may be adopted.

b. Proposing a new financial penalty for breaches of the new duty of up to 13 weeks’ gross pay (along the lines of the penalty for a failure to inform and consult with staff in a TUPE situation).

c. Introducing a requirement to publish reports on prevention and resolution measures, to increase transparency and awareness of harassment. The report will require board sign-off to ensure engagement at the most senior levels. Potentially, it is suggested, this report could be expanded to include harassment monitoring and reporting figures.

2. Making employers responsible for protecting their staff against harassment by third parties, e.g. customers and clients, where they knew (or ought to have known) their staff were at risk.

It is proposed only a single incident of harassment would be required to trigger the new provision. The s.109(4) employer’s defence of having taken “all reasonable steps” to prevent unlawful behaviour should be extended to include third party harassment.

3. Increasing protections for interns and volunteers

The Equality Act applies to employees and workers but does not cover some types of interns, or work-experience students and volunteers. The consultation identifies that these groups are particularly vulnerable and less likely to report harassment as they often don’t know their rights and because their position in an organisation (and legally) is more precarious than for an employee. The consultation seeks to increase protections for these groups, while at the same time not creating too much of a financial or legal burden on employers. It therefore seeks views on:

a. Whether to extend the protections of the Equal Act to cover all interns 
b. Whether to extend the protections of the Equality Act to cover more formal volunteer arrangements (but not necessarily infrequent, informal or ad hoc volunteering).
c. Whether to extend the protections of the Equality Act to cover all volunteers but to create a carve-out for small employers or entirely volunteer-led organisations

4. Increasing the amount of time an employee has in which to bring an Employment Tribunal claim.

The report acknowledges that harassment can be traumatic and can take an individual longer to come to terms with or identify as an unlawful act. As a result, it seeks views on whether to increase the time limit for harassment claims only, or alternatively whether to extend the time limit for bringing any Equality Act claim, on the basis that having two sets of tribunal time limits could be confusing. The consultation seeks view on what the new time limit should be, suggesting 6 months.

5. Finally, the consultation sets out that the government is currently investigating whether any other non-legislative options could be used to prevent sexual harassment and invites suggestions from the public

The consultation closes on 2 October 2019.

Practice points

The government has stated that it is committed to ensuring the issue of sexual harassment is addressed; therefore it is important for employers to be aware of their obligations and keep up to date with the changes.

In order to demonstrate that your organisation has taken “all reasonable steps” to prevent harassment, we recommend:

• Having suitable equal opportunities and bullying & harassment policies in place
• Providing regular training for employees and managers on these policies
• Make sure any reports of sexual harassment are taken seriously and investigated sensitively and in a timely manner