The government has launched a consultation on sexual harassment in the workplace, seeking views on how the law can be strengthened to better address what it describes as "a problem that persists at a startling rate". The consultation, which closes on 2 October 2019, focuses on four areas: prevention of sexual harassment in the workplace, third party harassment, protection of volunteers and interns and employment tribunal time limits. This short article will look at the proposals in turn.
Preventing sexual harassment in the workplace
The consultation states that the current legal framework sets out clear protections against, and liability for, sexual harassment in the workplace, but highlights that employers are not doing enough to prevent harassment happening in the first place.
Work is underway to introduce a statutory code of practice to help employers better understand what is expected of them and in particular the meaning of "all reasonable steps" to prevent harassment. The "reasonable steps" as a concept already exists in the Equality Act to provide an employer with a defence against liability for harassment carried out by their employees. However, the consultation goes further and seeks views on whether a mandatory duty should be introduced requiring employers to put measures in place and to take the practical steps envisaged as part of the "reasonable steps" concept – a pro-active duty to prevent unlawful conduct, not just a defence after the event.
In addition, the consultation discusses the enforcement options for such a duty, including compensation for breach of up to 13 weeks' pay, modelled on the current protective award for an employer's failure to collectively consult on a TUPE transfer, and a possible option to introduce a reporting obligation to incentivise employers, through transparency, to put measures in place .
Third party harassment
Following the repeal in 2013 of the then third party harassment provisions, the government is proposing to re-introduce explicit statutory protection, and employer liability, in circumstances where an employee is subjected to harassment by a third party, such as a client or customer. Previously, such harassment had to have occurred on at least two occasions for the employer to be liable. The consultation states that the "three strikes" approach was flawed and is looking at a different formulation for the re-instated protection. Options include triggering protection after one incident, or alternatively that it should be triggered where an employer is aware that harassment is likely to occur, without a need for a previous incident.
Volunteers and interns
Volunteers are not currently protected against harassment – or indeed other types of discrimination - under the Equality Act. The same applies to those interns who do not satisfy the employment test under the Act. Recognising the particular vulnerabilities for these groups, the consultation is looking at ways to extend not just protection against sexual harassment, but other forms of discrimination too, to volunteers and to ensure all interns are covered.
Employment tribunal time limits
Concerns have been expressed for some time that the time limit of three months for bringing an employment tribunal claim is too short, thus creating a barrier to justice, particularly in circumstances where the employee has suffered discrimination, including harassment. Recognising that it would be unfounded to look at sexual harassment in isolation, the government is seeking views on whether the three month time limit is sufficient for bringing an Equality Act claim, whether there should be a different time limit for particular types of claim - such as sexual harassment or pregnancy and maternity discrimination - and, in relation to both questions, what that time limit should be. It is not concerned with the time limit for other types of employment claims, such as unfair dismissal.
The #metoo movement in particular has revealed a worrying level of sexual harassment in the workplace and it is clear from the consultation that the government believes more can and should be done to tackle it and to protect victims. A mandatory duty, particularly if coupled with effective enforcement, is likely to encourage those employers who are not already doing so to take steps to prevent and deal with harassment in the workplace. However, employers will surely be wondering what such a duty would look like. We will have to await the statutory code (the first indication of what this may entail is expected later this year) and, of course, the outcome of the consultation. However, those employers who already take steps to create a culture where harassment is not tolerated, who take complaints of harassment seriously and deal with them effectively, who provide constructive equal opportunities training and have effective and well publicised policies in place, are unlikely to find any new duty overly burdensome.
Making changes to employment tribunal time limits may pose more of a hurdle for the government. Even if applied consistently across all claims under the Equality Act, it is hard to see how such a regime can successfully interact with other types of employment claims, including for unfair dismissal. Often brought in conjunction with discrimination claims, there are likely to be significant challenges if they are subject to different time limits.
Finally, it is interesting to note that although the consultation is focused on sexual harassment on the back of #metoo as well as recent reports on its prevalence and damaging effects, the government stresses that the options discussed in the consultation apply equally to all forms of harassment, such as on grounds of race, sexual orientation, disability and age.