Legal

The new duty on employers to prevent sexual harassment at work

13 Aug 2021 By Hannah Netherton and Gillian MacLellan

Hannah Netherton and Gillian MacLellan explain the implications of the government’s response to the consultation on sexual harassment in the workplace 

The government has published its long awaited response to the consultation on sexual harassment in the workplace. Although employers have been bound by non-discrimination and harassment obligations under equality legislation for many years, these changes will require businesses to put the active prevention of sexual harassment much higher on the corporate risk register.

The new legislation will impose a duty on employers to prevent sexual harassment in the workplace. In addition, the law will be changed to re-introduce liability on employers for third party harassment. Finally, it seems that there will be an extension in the time limits to bring a claim under the Equality Act 2010 (EqA 2010) from three months to six months.

A new duty on employers to prevent sexual harassment

  • Employers will be required to take all reasonable steps to prevent sexual harassment. It appears that an incident will need to have taken place before an individual can bring a claim against their employer, although there are mixed messages about this in the response and we will need to wait for further clarity on this point. 

  • Employers will already be familiar with the reasonable steps defence, which can be relied on to avoid liability for the actions of an employee who carries out harassment or discrimination. It is expected that this new duty will ask employers to go further than their existing arrangements to avoid liability. 

  • The government intends that there will be more support for the Equality and Human Rights Commission (EHRC) to take strategic action and impose legally binding agreements on employers who fail to get this right. 

  • The EHRC will develop a statutory code of practice and the government will introduce accessible guidance for employers.

Third party harassment

  • Employers could historically be liable for harassment of their employees by third parties, although the provision was repealed in 2013. The government has now committed to re-introduce protection against third party harassment. The government is still considering whether there will need to be at least one incident by a third party before an employer can be held liable.

Time limits look likely to be extended for all equality act related complaints

  • While it has not been finalised, it appears a strong possibility that the government will extend the time limits for individuals to bring claims in an employment tribunal from three months to six months. This appears likely to extend to all Equality Act 2010 claims, not just those relating to sexual harassment.

Volunteers and interns

  • The consultation also considered whether to specifically extend the protections in the Equality Act to interns and volunteers. The government has decided not to act here on the basis that they consider (a) most interns would be considered to be workers and therefore already protected by the equality legislation, and (b) genuine volunteers should remain outside the scope of this regulation.

Next steps for employers?

This consultation response should prompt employers to put their harassment policies and procedures at the top of their HR priorities. Training and awareness are central to spreading the message across the wider workforce, many of whom may be working remotely. Harassment can still occur in a remote environment although it takes different forms. 

Cleary, a great deal more is going to be expected of employers in relation to preventing workplace harassment. Employers who fail to put preventative steps in place will be at risk of a claim under this new duty, in addition to a claim for workplace harassment. 

It is important that where individuals complain of harassment, these complaints are taken seriously and addressed fairly and in accordance with process. However, fuller details of what the duty will involve will be set out in the EHRC code of practice.

Hannah Netherton and Gillian MacLellan are employment Partners with CMS

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