It has been nearly four years since the Me Too movement went viral on social media and gained worldwide prominence and momentum, highlighting sexual harassment and gender inequality across the world, including in the workplace.
As a result of the movement, employers came under increased levels of scrutiny in respect of steps they were taking to prevent and deal with allegations of sexual harassment.
Paralleling this scrutiny was a concern that the legal framework preventing sexual harassment in the workplace was not robust enough. Concerns were raised that the law does not adequately protect employees who are the victims of sexual harassment, or provide employers with a framework that supports putting in place practices and policies which prevent sexual harassment in their organisation.
This concern prompted a number of Government led inquiries and a Government consultation on how to prevent sexual harassment in the workplace and whether the law was fit for purpose. Nearly two years after its consultation ended, the Government has published its response to the consultation, outlining its proposals to reform laws concerning sexual harassment.
This article examines the Government's proposals of reform, as well as the previous Government led inquiries which prompted the Government's consultation. We also consider the steps that employers may want to take now in light of the proposed legal reform.
The WESC inquiry
In February 2018, the Women and Equalities Select Committee ("WESC") launched an inquiry into workplace sexual harassment. The aim of the inquiry was to find practical recommendations which would inform legislative change. The WESC held seven oral evidence sessions accompanied by written evidence from a variety of organisations and individuals. Joanna Blackburn, Partner in the Employment team at Mishcon de Reya, gave evidence, particularly focussing on the need for clear guidance for employers on what they should be doing to tackle workplace harassment. Her evidence highlighted there was a significant gap between the law and how employers operate and implement the law in practice.
The WESC produced its report in December 2018 and the conclusions and recommendations included, but were not limited to, the following:
- There should be a mandatory duty on employers to protect workers from harassment and victimisation. Any breach of that duty should be an unlawful act enforceable by the Equality and Human Rights Commission (EHRC) and should carry substantial financial penalties. The duty would be supported by a statutory code of practice on sexual harassment at work which would set out what employers need to do to meet the duty.
- There should be legislative changes that place a positive duty on employers to expressly protect workers from harassment by third parties and to ensure that employers can be held liable for failure to take steps to protect staff from third party harassment.
- The Government should extend the protections relating to harassment of interns and volunteers.
- The time limits for lodging a sexual harassment claim in the Employment Tribunal should be increased from three to six months and the clock on time limits should be paused until the employer's internal complaints and grievance procedures are completed.
The consultation and response
On 11 July 2019, the Government Equalities Office launched a consultation on how best to tackle sexual harassment in the workplace. The consultation comprised two parts:
- A technical consultation which invited detailed responses on the legal framework around preventing sexual harassment.
- A public questionnaire that allowed the public to submit their views and experiences of harassment.
The consultation closed on 2 October 2019. Almost two years later, the Government published its long awaited response to the consultation. It recognised a strong legal framework is crucial in order to establish clear standards and expectations for individuals and employers. The response agreed to implement a number of the recommendations made in the WESC report.
1. A positive duty to prevent sexual harassment
Arguably, the most significant point arising from the response is that the Government intends to introduce a duty requiring employers to take steps to prevent sexual harassment. Currently, employers can utilise the "all reasonable steps" defence in harassment claims to limit their liability, if the employer can show that they took all reasonable steps to prevent harassment. However, this defence is only utilised once there has been an incident of harassment. The WESC inquiry also highlighted that employers are cautious with using this defence, given the uncertainty on what constitutes "all reasonable steps".
The new proactive duty centres on employers taking preventative steps to avoid sexual harassment. It is expected that the employers will still be required to take "all reasonable steps" to prevent sexual harassment, as is the case now, but they could potentially be held to account for failing to take these actions, even in the absence of any actual incident of sexual harassment. The Government has confirmed it will continue to liaise with stakeholders regarding how this positive duty will be implemented in practice and will introduce the change to the law "as soon as" parliamentary time allows.
Currently, the EHRC has the ability to reach binding agreements with employers who have breached the Equality Act 2010 ("EqA"); however, the Government intends to consider scope for further EHRC action and enforcement in this area.
The response confirmed that the Government supports the EHRC in developing a statutory code of practice. The aim of the statutory code of practice is to enable employers to understand their existing duties and whether they have taken "all reasonable steps" to prevent harassment. The Government intends to produce accessible guidance for employers alongside the statutory code of practice which will outline what they should be doing to prevent sexual harassment. The guidance in intended to help employers benchmark their actions and decide if they are taking the most effective action.
The statutory code of practice and guidance is expected to increase the workforce's understanding of sexual harassment, as it will set out what is expected of their employer. This will better inform staff about decisions as to whether they should bring a legal challenge following an incident or if their employer has not taken the appropriate steps in light of the new positive duty obligations.
2. Third-party harassment
The Government has confirmed its intention to introduce workplace protection against third-party harassment. The Government has confirmed that their intention is to mirror the "all reasonable steps" defence and apply this in the context of third party harassment. This means that employers could be held liable for harassment against their employees by customers, clients or suppliers if they have failed to take all reasonable steps to prevent third-party harassment from occurring. A number of respondents stated the reasonable steps would need to be clearly defined, but the Government has said that this would inhibit flexibility, which would hinder a proportional approach based on the individual circumstances of the workplace.
The Government intends to continue to liaise with various stakeholders as to how the law on third-party harassment might be implemented in practice, noting the complexity of designing a system that would work across the full breadth of employment contexts.
3. Time limits
The current time limit for bringing an EqA claim in an Employment Tribunal is three months (with the exception of equal pay claims which are six months). The response recognised that the current three month time limit could be problematic as the trauma experienced in sexual harassment cases may result in delays in taking action. However, because of the pandemic, the Employment Tribunals have faced extraordinary delays and this has highlighted the significant administrative and resource issues the Tribunals have been facing and the additional pressure that would arise from introducing a six month time limit. Given this, the Government has decided to continue to look into this issue further, so it is watch this space for now. The Government did, however, note that in order to avoid any confusion on time limits, if it did extend the limit it would do so for all EqA based claims.
4. Protection for Interns and Volunteers
When asked whether interns and volunteers should be protected from discrimination, harassment and victimisation under the EqA, 80% of the respondents agreed that they should.
However, whilst the Government acknowledged that these particular groups could be vulnerable to sexual harassment by virtue of their junior positions and the inherent power structures in play, the response made a distinction between (i) those who could be termed "working for free" (such as interns) and (ii) those who could be described as "pure" volunteers.
The response stated that most interns are working to gain professional experience and would be considered workers who would, and should, already have EqA protection. The Government said that it would be disproportionate to provide statutory protection for volunteers who carry out work on an ad hoc or informal basis, or support small, volunteer-led organisations, as such protections could outweigh the value of the services being provided. Despite this, the response went on to state that, as a matter of good practice, all responsible employers should have an effective anti-harassment policy which covers all staff, not just employees. This would also encompass agency workers, consultants, volunteers and interns.
Steps employers can take now
The Government has taken on board some the recommendations arising from the WESC report and the consultation. However, it remains to be seen when the Government will implement its proposals for reform or the extent of the proposed legislative changes. There is no set implementation date for the positive duty on employers to prevent sexual harassment in the workplace or the duty to prevent third-party harassment. There is also no timescale for the EHRC statutory code of practice or associated Government guidance.
However, it is clear that employers will be expected to take more action to prevent and tackle sexual harassment in the workplace. Taking such steps is also important from a business perspective. In advance of the Government implementing its proposals, there are a number of actions that employers can take now to ensure that they are taking adequate steps to protect against sexual harassment, such as:
- reviewing anti-harassment policies and procedures to ensure that they are robust;
- providing regular, targeted training to all staff on anti-harassment, equality and discrimination;
- fostering a workplace culture of zero-tolerance to harassment and where all employees are encouraged to report inappropriate behaviour; and
- having effective reporting mechanisms in place and ensuring all employees are aware of them.
You can read the Government's response here.
Here is a clip of Partner Joanna Blackburn giving evidence at the Women and Equalities Select Committee's inquiry.
You can read the report from the Women and Equalities Select Committee's inquiry.