In the UK, the #MeToo movement prompted various investigations, reports and initiatives addressing the issue of sexual harassment in the workplace including activity by the EHRC and the Women and Equalities Select Committee.
In terms of specific government action, in 2019, the Equalities Office published a consultation paper on sexual harassment in the workplace which explored existing protections for workers and how these could potentially be strengthened. The consultation closed on 2 October 2019 and a government response has finally been published today.
Key points to note from the response are –
- The government will introduce a duty requiring employers to take “all reasonable steps” to prevent sexual harassment. The government believes that the implementation of this duty will encourage employers to take proactive steps to make the workplace safer for everyone.
- Explicit protections from third-party harassment (for example, harassment by a customer or a supplier) will also be introduced. Employers will have an defence to claims of this type if they are able to demonstrate that they took “all reasonable steps” to prevent harassment occurring.
- Explicit protections will not be extended to volunteers and interns. In most cases interns are covered by the existing legislation and the government considers that extending protection to volunteers would create a disproportionate level of liability and difficulty for organisations.
- The government will look closely at the option of extending the time limits for bringing Equality Act based claims to an employment tribunal from 3 to 6 months. If an extension is introduced, it is likely that this would be across all Equality Act claims. This would avoid the risk of confusion which could result if the limits were increased only for claims based on specific grounds.
- The government is to encourage further EHRC strategic enforcement action so that enforcement will not rely solely on individuals pursuing employment tribunal claims. In addition, the EHRC will be supported to develop a statutory code of practice to complement its 2020 technical guidance. The government will also produce its own guidance for employers which will outline practical steps that organisations can take to improve their workplace practices and culture which impact on sexual harassment at work.
- The legislative changes required to introduce these measures will be introduced “as soon as parliamentary time allows”.
Impact for employers
Many employers are already taking steps to improve their equality and diversity strategies in light of movements such as #Metoo and Black Lives Matter and also as part of their involvement in ESG initiatives. Today’s consultation response confirms that this is the right approach and that workplace equality issues must remain high on the business agenda. As well as outlining the specific matters on which the government will legislate, the consultation response also emphasises the need for cultural and societal change and the important role which employers can play by working to improve workplace practices and culture.
Although it isn’t yet clear when the new obligations will come into effect, businesses are recommended to consider as soon as possible how they will incorporate into their equality strategy the requirement to take all reasonable steps to prevent workplace harassment and also how they can manage the risks of third party harassment. Any advanced plans which are drawn up can then be tweaked as and when the further guidance from ERHC and the government, as promised in the consultation response, is published.