Government proposes employers' duty to prevent harassment in the workplace

Sexual harassment in the workplace has been unlawful for some time, most recently under the Equality Act 2010 (EqA). Recent high-profile cases, however, have driven home just how prevalent such unwanted conduct remains in the workplace and the damaging effect it can have on victims. In response to a 2018 report on the issue, produced by the Women and Equalities Select Committee, the Government committed to a formal consultation both with relevant parties and the wider public. Its findings following that consultation have now been published.

As part of that process, the Government intended to “ensure that… legislation was operating effectively” and the consultation subsequently focused on the following key points:

1. The need for the introduction of a mandatory duty on employers to protect workers from harassment in the workplace;
2. How best to strengthen and clarify the laws in relation to third-party harassment;
3. Whether interns were adequately protected under current legislation;
4. Whether the time limit for bringing claims under the EqA should be extended.

In their response, the Government makes a number of proposals designed to increase protection currently afforded to workers under the EqA.

Introduction of positive duties on employers to prevent sexual harassment in the workplace

The first, and perhaps key, proposal made by the Government is to introduce a new positive and preventative duty on all employers to take “all reasonable steps” to prevent sexual harassment in the workplace.

The Government also intends to further support the Equality & Human Rights Commission (EHRC) around both its strategic enforcement action – considering whether there is scope for further action by the EHRC – and in developing a statutory code of practice to complement the technical guide the EHRC published in 2020.

Extension of protections from third party harassment

In its response, the Government also reiterated its commitment to legislating on the issue of third-party harassment. It’s not currently clear precisely what form this legislation will take but the Government again suggests that the “all reasonable steps” duty will be a useful tool in achieving this. In their view that duty allows both flexibility and proportionality.

“All reasonable steps”

Employers should note that, in spite of the government’s commitment to introduce these “new” duties, an “all reasonable steps” defence already exists for employers under section 109(4) of the EqA 2010 for claims of harassment. Under section 109(4), where an employee has committed an act of harassment employers will not be liable if they can demonstrate that they took all reasonable steps to prevent the employee from committing harassment.

In determining whether an employer took “all reasonable steps” the tribunal should apply a two-stage approach:

1. First, they should look at what steps the employer took;
2. Then they should consider whether there were other reasonable steps that should have been taken, considering the likelihood of the steps being effective in preventing discrimination, the costs and practicalities of the steps.

The recent case of Allay v Gehlen demonstrates perfectly how the ‘all reasonable steps’ defence works in practice. For more information on that case, please see our previous article.

Protection for interns and volunteers

The Government’s response makes clear that they feel volunteers already fall under the protection of the EqA due to the fact they are often classed as “workers” which is widely defined in the Act.

The Government does not consider that the protections provided in the EqA should apply to volunteers who are not workers. In their view, extending protection to volunteers would create a “disproportionate level of liability and difficulties” for organisations.

Extending the time limit to bring a claim for sexual harassment under the EqA

Currently, workers normally have three months from the date of the act they are complaining of to bring a claim under the EqA. In their consultation response the government state that they will look closely at extending the time limit, recognising that any such extension, whilst beneficial, would have an impact on the tribunal service which is already facing additional pressure as a result of the COVID-19 pandemic.

The Government intends to bring forward legislation to enact the above changes “as soon as parliamentary time allows.” In light of the Government’s current priorities, it remains to be seen when any such draft legislation will be put before parliament.

In the meantime, employers should continue to ensure they have effective measures in place to prevent harassment in the workplace and where issues do arise those should be dealt with promptly and in a reasonable and appropriate manner. Having clear policies in place and ensuring all staff are fully aware of any such policies, having received up to date and detailed training, is essential.