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New duty on employers to prevent sexual harassment

Sexual harassment in the workplace has been against the law for decades, but the UK Government has confirmed it will take steps to introduce a new legal duty in this area ’when parliamentary time allows’.

The announcement was made in the Government’s recent response to a 2019 consultation on the topic. Details are still pending, and timescales are also vague, but the additional measures signal a move to strengthen protections after increased public scrutiny and debate.

Proactive duty

The content of the new duty is not set out. However, it appears employers will be required to take ‘all reasonable steps’ to prevent sexual harassment.

The Equality and Human Rights Commission is expected to develop a new statutory code of practice to assist employers with their assessment of what steps are appropriate.

Third party sexual harassment

Sexual harassment in the workplace might happen as a result of customer or client behaviour – should employers be held responsible in these circumstances, too? Going forward, this will be the case.

The Government has confirmed it will introduce explicit protection from third-party harassment. Again, we are waiting for details on how this will operate, but the response indicates employers will have a defence if they are able to demonstrate that they took ‘all reasonable steps’ to prevent the harassment occurring.

Extension of time

The consultation considered whether the time limit for bringing Equality Act claims should be extended from three months to six.

The Government is said to be ‘looking closely’at the proposal – recognising that trauma and other factors may make it hard for potential claimants to meet the current deadlines, but also acknowledging the pressure that changes to the limitation period would put on an already strained tribunal system.

It appears employers will be required to take ‘all reasonable steps’ to prevent sexual harassment.

Protection to interns and volunteers

The Government rejected calls to explicitly extend protection to interns and volunteers. It viewed interns as having sufficient protection because they would generally qualify as workers (and so fall within the Equality Act). For volunteers, it was thought that introducing specific legal responsibilities could have negative unintended consequences.

Policies and communications for sexual harassment

Even without the detail of the duties, it is clear employers will be required to take a more proactive approach in stamping out sexual harassment in the workplace.

Where the workplace encompasses hybrid-working, employers will also have to think through the different forms that sexual harassment could take in the virtual sphere.

Results of a study by the charity Rights of Women (reported in January 2021) found that a quarter or women suffering sexual harassment at work said the misconduct was exacerbated during last year’s lockdown and almost half said the sexual harassment was now taking place remotely.

We also know from recent tribunal cases that the existing reasonable steps defence in the Equality Act is relatively difficult to satisfy, so employers will need to be robust in the policies and communications they put in place.

Our employment law team are more than happy to assist with any queries you may have.

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This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

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