The Government has published its response to the consultation on sexual harassment in the workplace. The consultation revealed that sexual harassment at work is still a significant problem that the law is failing to address.
The key proposal arising from the consultation is the introduction of a new proactive duty requiring employers to prevent sexual harassment in the workplace. The EHRC will develop a statutory code of practice, which they will be able to enforce, and which will complement the technical guidance issued in January 2020. Accessible guidance for employers will also be introduced.
The consultation asked respondents for their views on whether the point of liability for the new proactive duty should be shifted so that employers must take all necessary steps before an incident occurs. This would mean that an employee, or the EHRC, could take enforcement action without an incident of sexual harassment having taken place. The response to the consultation is unclear on whether or not an incident must have taken place for enforcement action to be taken. The response (at 4.1) sets out that ‘the duty will closely follow the formulation suggested within the consultation, with employers required to take ‘all reasonable steps’ to prevent harassment, and for an incident to have taken place before an individual can make a claim’. The ‘formulation’ in the consultation didn’t include the requirement for an incident to have taken place. It then goes on to say that ‘the EHRC has the power to make legally binding agreements with employers who have been found liable for breaches of the Act’, which clearly could only be the case if an incident has taken place. Hopefully there’ll be clarity once the required changes to legislation start to appear.
The response also contains other proposals to reform sexual harassment law including a requirement for employers to provide protection against third party harassment (sound familiar?!) and a promise to ‘look closely’ at extending the time limit for employment tribunal claims brought under the Equality Act 2010 from 3 months to 6 months, but no details on how or when these other measures might be introduced.
On the issue of extending the protections under the Equality Act 2010 to volunteers and interns, the Government response was that ‘many of the latter group would already be protected, and that extending protections to the former could have undesirable consequences’.