Expect UK workplace sexual harassment code in 2019

Out-Law News | 24 Jan 2019 | 11:05 am | 3 min. read

The UK government will develop a code of practice for employers on workplace sexual harassment, as part of a package of measures to clarify the law in this area.

The code of practice will be developed by the Equality and Human Rights Commission (EHRC), and cover employers' legal responsibilities to protect their staff from harassment. The government intends to consult on reforming non-disclosure agreements (NDAs); strengthening and clarifying the laws in relation to third party harassment; and potentially introducing a new legal duty on employers to prevent sexual harassment in the workplace.

Victoria Atkins, the government's minister for women, announced the plans last month, in response to a report on workplace sexual harassment published by the House of Commons Women and Equalities Committee last summer.

"Sexual harassment at work is illegal, but sadly that disgusting behaviour is something that many women still experience today," she said.

"We are taking action to make sure employers know what they have to do to protect their staff, and people know their rights at work and what action to take if they feel intimidated or humiliated. Everyone has the right to feel safe at work," she said.

"With over 40% of women saying that they have experienced unwanted sexual behaviour in the workplace at some point during their careers, robust government action to address this endemic problem is long overdue," said employment law expert Susannah Donaldson of Pinsent Masons, the law firm behind Out-Law.com.

Responding to the committee's report, the government said that it "shared [the] concerns that evidence suggests many employers are currently failing their employees in their responsibility to prevent sexual harassment, and in the systems they have in place for dealing with it when it does occur". The planned code of practice, to be developed by the ECHR, would be designed to help employers to understand and demonstrate that they have taken 'all reasonable steps' to prevent harassment, in line with the existing law.

It is the government's view that the new code of practice will "have the same impact" as a proposal by the committee to introduce a mandatory duty on employers to protect workers from harassment and victimisation in the workplace. However, it will consult on the proposal, in order to "gather evidence on whether it would be an effective and useful too to ensure prevention is prioritised, and to understand its potential impact on business".

"If an employer can show that it took 'all reasonable steps' to prevent an employee from committing a particular discriminatory act, the employer may be able to avoid liability for the employee’s actions," said Donaldson. "The government’s decision to focus on 'reasonable steps' rather than placing a mandatory statutory duty on employers to protect employees from harassment, coupled with its decision not to strengthen available sanctions for non-compliance, has been viewed by some as a missed opportunity and as a way of enabling employers to shirk responsibility for sexual harassment in the workplace."  

The government also intends to monitor how employment tribunals take account of the new code of practice in the remedies they apply in sexual harassment cases, but is not currently proposing linking compensation awards to any breaches.

The committee, in its July report, was particularly concerned about reports over the unethical use of NDAs and confidentiality clauses by employers when settling cases of workplace sexual harassment. In its response, the government agreed that NDAs required better regulation, particularly around ensuring that employees know that signing an NDA will not usually prevent them from having the right to make a public interest disclosure and to take a matter to an employment tribunal. It intends to consult on the best way to do this, including the committee's recommendation of a standard approved confidentiality clause.

The government will consult on how best to strengthen and clarify the laws around employers' duties to protect their staff from harassment by third parties. It also intends to consult on whether additional protections are needed for volunteers and interns, who may not be classed as 'employees' and may therefore not be covered by the same legal protections.

The government has also committed to working with industry regulators to ensure that they are taking appropriate, sector-specific action against sexual harassment. It will also work with bodies including Acas, the EHRC and employer bodies to raise awareness of appropriate workplace behaviours and individual rights. The government has also committed to making the EHRC a 'prescribed person' to whom protected whistleblowing disclosures can be made, and may consider extending this to the police and industry regulators in sexual harassment cases.