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Sexual harassment in the workplace: proposed changes to employer’s duties

The Government has published its consultation response on workplace sexual harassment and harassment by third parties. The consultation was undertaken in response to the #metoo movement, which revealed that many people (mainly women) experienced sexual harassment in the workplace despite this having been unlawful for decades.

The main announcement is a plan to introduce a new positive duty on employers to take all reasonable steps to prevent sexual harassment in the workplace. It would include a new statutory code of practice, to be developed by the Equality and Human Rights Commission (EHRC), with employers potentially liable if they do not take reasonable steps to prevent harassment in accordance with it.

This would be enforceable by both the EHRC and by individual employees after an incident had taken place. It would also be enforceable by EHRC, but apparently not by individuals, without the need for any incident to take place.

These proposals underline the importance of employers carrying out robust and effective anti-discrimination and harassment training to avoid sexual harassment in the workplace.

Under current law, when a worker commits an act of unlawful discrimination in the course of their employment, their employer is treated as having committed the act itself. An employer has a statutory defence to discrimination and harassment claims if it can prove that it has taken ‘all reasonable steps’ to prevent the unlawful conduct happening in the first place.

The main announcement is a plan to introduce a new positive duty on employers to take all reasonable steps to prevent workplace sexual harassment.

In considering the reasonableness of the steps an employer has taken, it is not enough to ask whether there has been training. As the Employment Appeal Tribunal put it earlier this year: “If training involved no more than gathering employees together and saying, ”here is your harassment training, don’t harass people, now everyone back to work”, it is unlikely to be effective, or to last”.

Our advice is to carry out training before problems and complaints emerge. If it becomes clear that despite training staff are continuing to engage in harassment, or do not understand the important of preventing it and reporting it to managers, employers should take this a clear signal that more effective training is urgently needed.

This existing duty does not just apply to acts of sexual harassment but to also to discrimination and harassment related to other protected characteristics under the Equality Act.

The response also includes proposals to:

  • Introduce protection against harassment by third parties in the workplace;
  • Confirm that more volunteers and interns have legal protection against sexual harassment;
  • Extend the time limit for employment tribunal discrimination (including, but not only, harassment) claims from three months to six months

These three proposals appear to be at a more formative stage and are less likely to happen soon.

For further advice equalities and diversity training, or on any other employment law or discrimination issue contact our employment team.

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