Out-Law News | 19 Jul 2019 | 9:37 am | 4 min. read
The government is particularly considering whether to create a legal duty for employers to take all reasonable steps to protect their staff from sexual harassment by third parties; whether this duty should be extended to cover volunteers and interns, as well as staff; and whether the current three-month time limit for employment tribunal claims under the 2010 Equality Act should be extended.
Matthew Percival, head of employment at the Confederation of British Industry (CBI), welcomed the plans on behalf of employers.
"Businesses are ready to play their part in tackling sexual harassment at work," he said. "They will welcome clarity that employees have rights to protection against harassment by third parties. They can also support a new duty that requires reasonable and proportionate steps to minimise the risk of sexual harassment at work."
Ensuring appropriate protection for volunteers and interns, who don't enjoy the full protection of employment rights and therefore may be more vulnerable to abuse of power, is laudable.
The government is encouraging individuals who have experienced workplace sexual harassment to respond to an online questionnaire on its proposals, while organisations are being encouraged to respond to a more detailed technical consultation. Both consultation exercises will run until 2 October 2019.
Under the Equality Act, an employer is legally responsible if an employee is sexually harassed at work by another employee, and the employer has not taken all reasonable steps that it could have to have prevented that harassment. However, this does not cover harassment of employees by third parties, such as customers or clients, as a provision dealing with this type of harassment was revoked by the government in 2013. In May 2018, the Court of Appeal ruled that the Equality Act did not provide protection in cases of third party harassment.
Although there are other potential routes to claim harassment by third parties, these are difficult for individuals to undertake. The government is now consulting on the best way to extend the protections in the Equality Act to cover this type of harassment. It is proposing to give employers the same defence of having taken "all reasonable steps" to prevent the harassment from happening in any legal proceedings against them that currently applies to harassment by other employees.
It is also seeking views on whether volunteers and interns are sufficiently protected by harassment under the current law, or whether changes are needed.
Employment law expert Sue Gilchrist of Pinsent Masons, the law firm behind Out-Law, said: "As we have seen from many of the high-profile cases of harassment reported since the start of the #MeToo movement, harassment at work is often about abuse of power. Ensuring appropriate protection for people in these categories, who don't enjoy the full protection of employment rights and therefore may be more vulnerable to abuse of power, is laudable."
More broadly, the government is seeking views on whether the current legal protections for harassment are sufficient, or whether it should introduce a new legal duty to prevent sexual harassment in place of the current 'reasonable steps' provisions. However, as this would require a change to primary legislation, the government does not intend to do so unless it receives "compelling evidence that the change would be effective". Work has begun on developing a statutory code of practice on sexual harassment and harassment at work, as announced in January. Once published, this will "further clarify the law on this matter", the government said.
"The argument supporting a specific statutory duty to prevent sexual harassment comes from the standpoint that putting a positive duty on employers to do this will give it a stronger focus and impetus, and by implication that employers will then take it more seriously than the current 'reasonable steps' provisions," said Gilchrist. "The latter are essentially a potential defence to an action - if an employer can show they've taken these steps, they would not be liable for the harassment. The potential for enforcement action for breach of a duty to prevent harassment may well be more powerful. However, given the government's parameters for its inclusion, it may be unlikely that it will be introduced."
"The Statutory Code of Practice on this topic which we are awaiting in 2019 will most likely be welcomed by employers. EHRC Codes of Practice are practically-focussed and provide clear guidance and worked examples," she said.
As we have seen with gender pay gap reporting, the requirement for board sign-off certainly places a greater emphasis on the issue.
The government is also seeking views on whether the time limit for bringing a claim related to a breach of the Equality Act should be extended. The current time limit, which is generally three months from the date of the act complained of, may be "creating a barrier to justice" in these cases, according to the consultation paper. Any extended time limit would apply not just to sexual harassment claims, but to claims for discrimination, harassment and victimisation on the basis of an Equality Act 'protected characteristic'.
Employment law expert Helen Corden of Pinsent Masons said: "This proposal may be less welcome by some. Tribunals already have more scope to extend time limits in discrimination claims than they do in a claim for say, unfair dismissal or deductions from wages, and different time limits for different types of claim may only serve to cause confusion amongst employees."
Finally, the government is seeking views on how to incentivise organisations to put measures in place to prevent sexual harassment and have asked for views on whether there should be a requirement to publish or report on prevention and resolution policies publically, with sign-off from the board.
"This would certainly move the issue up the board agenda," said Corden. "As we have seen with gender pay gap reporting, the requirement for board sign-off certainly places a greater emphasis on the issue."
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