Katy Wedderburn: Proposed new duty on employers to prevent sexual harassment in the workplace

Katy Wedderburn: Proposed new duty on employers to prevent sexual harassment in the workplace

Katy Wedderburn

Katy Wedderburn, head of MacRoberts LLP’s employment team, discusses the UK Government’s proposal to introduce a mandatory duty on employers to prevent sexual harassment.

The UK has had legislation making sexual harassment unlawful towards employees, workers carrying out work personally and job applicants, for a long time now. However, despite the legal protections and the recent #MeToo movement which propelled workplace sexual harassment into the spotlight, it is still not uncommon.

According to research carried out by the CIPD (Chartered Institute of Personnel and Development) in 2020, 4% of employees say they have been sexually harassed at work over the past three years, with younger employees more likely to be affected.
What is sexual harassment in the workplace?

The Equality Act 2010 (EqA) defines sexual harassment as “unwanted conduct of a sexual nature” which has the purpose or effect of “violating dignity” or “creating an intimidating, hostile, degrading, humiliating or offensive environment.”

A single incident can be enough to constitute harassment and there is no need for the recipient of the harassment to make it clear that the conduct is unwanted. A wide range of behaviours can fall under this definition, with ACAS providing the following examples:

  • Flirting, gesturing or making sexual remarks about someone’s body, clothing or appearance
  • Asking questions about someone’s sex life
  • Telling sexually offensive jokes
  • Making sexual comments or jokes about someone’s sexual orientation or gender reassignment
  • Displaying or sharing pornographic or sexual images, or other sexual content
  • Touching someone against their will, for example hugging them
  • Sexual assault or rape

A report in 2018 from the UK Women and Equalities Select Committee (WESC) on sexual harassment in the workplace called on regulators to take a more proactive role. The UK Government subsequently committed to consult to ensure that existing legislation was operating effectively.

The consultation ran from 11 July to 2 October 2019 and was split into two parts, a technical consultation and a public questionnaire. The technical consultation invited detailed responses on the current laws in relation to preventing sexual harassment in the workplace, and the public questionnaire was a set of online questions targeted towards anyone who was a victim of sexual harassment at work.

The key findings of the consultation were that many were supportive of the introduction of a new duty on employers to prevent harassment. They believed that it would prompt employers to take positive steps to prioritise prevention.

Following the consultation, the UK Government published its response on the 21st of July 2021. It outlined its intention to introduce a mandatory duty on employers to prevent sexual harassment. The Government has promised that the new preventative duty will be introduced as soon as parliamentary time allows.

It also confirmed its intention to introduce explicit workplace protections against third-party harassment, e.g. to prevent harassment of employees by or customers or clients of the employer. This could lead to employers being liable for failing to take all reasonable steps to prevent third-party harassment of an employee from occurring in the workplace.

The possibility of extending protections from harassment to volunteers and interns has been discounted.

There remains, however, an intention to develop a statutory code of practice (and supplementary guidance) for employers, detailing the necessary steps employers should take to prevent and respond to sexual harassment, to complement the technical guidance already published by the EHRC giving an explanation of and practical examples of how to tackle and respond to harassment effectively. Both the code and guidance will be designed to support proactive employers in making sure that they are taking the most effective action to prevent harassment.

The Government recognised that the three-month time limit for those bringing sexual harassment claims under the EqA can be too short, and may be a barrier to justice, e,g. for those dealing with the trauma caused by sexual harassment. It was recognised that this view was shared by the majority of respondents. They will be considering extending the time limit to six months. Interestingly, they noted that an extension would also benefit those bringing discrimination claims related to all the other protected characteristics (age, disability, race etc..) under the EqA so, if this is introduced, it will likely affect a wider group.

Perhaps unsurprisingly, the Response did not favour the introduction of “naming and shaming” those found to have contravened the protections. It was considered that this would not align with encouraging positive cultural and societal developments in preventing harassment.

Finally, the reintroduction of a wider power for employment tribunals to make workplace recommendations unlikely to be carried forward as it was considered that tribunals are poorly placed to take on the role of a workplace equality consultant.

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