Sexual harassment in the workplace has been unlawful for decades. However, for many it can still be a daily occurrence. There has been much publicity in recent years which suggests that in some workplaces, and in society at large, sexual harassment remains an unfortunate reality.
In 2019 the Government set up a consultation seeking views on whether existing employment law offered enough protection and whether the law should be strengthened. The Government have now reported on the outcome of the consultation and set out its proposals.
There is a clear acknowledgement in the outcome report that the law alone cannot fix this problem, and that we need cultural and societal change. However, the view in the report is that we need a strong legal framework which both establishes clear standards expected of individuals and employers alike and is responsive to the modern workplace.
There will be a new duty on employers to prevent sexual harassment in the workplace. This will be a positive duty and the rationale is that this will act as a prompt to employers to prioritise the stamping out of sexual harassment in their workplaces. The suggestion is that this duty will be “strategically” policed by the Equality and Human Rights Commission, who will have enforcement powers. Further, individuals will have the ability to bring claims in an Employment Tribunal where “an incident” has occurred.
Isn’t it the case already that there is a duty to prevent harassment at work?
Many responsible employers do take steps to deal with this issue. However, there is no positive legal duty to actually prevent sexual harassment. Individuals who experience harassment at work may bring a claim in the Employment Tribunal. If liability is established the employer may be able to rely on a defence that it took “reasonably practicable steps” to prevent harassment occurring in its workplace. The outcome to the consultation confirms that this defence shall remain available.
What are the “reasonably practical steps”?
The burden on employers to show that it took reasonably practicable steps to prevent harassment occurring is a high one. The Employment Tribunal would decide the matter but generally they look for a clearly established harassment policy which has been recently communicated to employees which sets out clear standards of expected behaviour and makes it clear the disciplinary action would ensue for staff who breach the policy. They would also expect to see that staff have been trained on the policy with clear examples of what would constitute harassment and that there is a track record of action being taken against staff previously found to have breached the policy.
In a recent case the Employment Tribunal rejected an employer’s argument that it had taken reasonably practicable steps since its staff training on the matter was out of date and had become “stale”.
What will the new positive duty to prevent sexual harassment entail?
There are no details set out in the consultation outcome. Given that a company or organisation acts through its directors, managers and employees it may be thought that no organisation can positively guarantee the actions of those people. However, complying with the positive duty is likely to focus heavily on being able to show a thorough implementation of policy and guidance throughout the workplace, with senior management buying into the process, perhaps through the appointment of a board member who has responsibility for compliance.
Further, we expect there to be a great focus on practical guidance and training since that is the only practical and realistic way to highlight clearly to staff the sort of situations which would be found to be unacceptable and would amount to a sexual harassment. There should be evidence that the training has actually taken place with course materials and a signed list of attendees plus evidence that the training is being repeated at reasonably regular intervals.
When is the new positive duty going to apply?
Not yet. The consultation outcome promises a Parliamentary debate “when time allows”. However, given that the law already provides for liability for sexual harassment at work, and a potential reasonably practicable steps defence, you may wish to act now.
Harassment by third parties
There has been a debate on whether employers should become liable for acts of harassment perpetrated on its staff by “third parties” such as visitors, customers, and staff employed by other organisations. The law used to allow for such liability, but the provisions were repealed some time ago, leaving the position uncertain.
The proposal now is that such liability for an act of “third party” harassment will apply clearly once again. However, some respondents to the consultation made the point that it may be difficult for employers to anticipate such matters and take appropriate steps, and also that in some sectors (eg hospitality) instances of third party harassment were much more common. To attempt to address this the Government have said they will allow an “all reasonable steps” defence. So, for employers who have taken all reasonable steps to prevent harassment from third parties to their staff, there would be a defence available if, notwithstanding those steps, an incident did occur.
You might therefore wish to consider making it clear to your suppliers and customers that they should ensure that their staff coming to your premises have been properly trained and the standards of expected behaviour have been made clear to them. Signing in books (both paper and electronic) might be adapted accordingly. You should also ask your staff to be vigilant and to report any instances of unacceptable behaviour by such visitors so that you may raise it with their employer.
What else is in the consultation response?
The consultation considered whether there should be specific protection against sexual harassment for volunteers and interns. The response states that there could be unintended consequences if specific protection was introduced for volunteers given the informal and ad hoc nature of this arrangement but emphasised that organisations accepting volunteers should still take steps to ensure that such persons are treated appropriately and are not placed in situations where they were likely to face harassment.
For interns, where there is a more formal working relationship, the view was that they would likely be covered by the existing legal protections.
Finally, there is a proposal to extend the time limit during which harassment claims can be brought to the Employment Tribunal from three months to six months.
What do I need to do now?
The Brabners Employment team would be pleased to carry out an audit and advise you whether you are likely to be compliant with both existing requirements and the new positive duty, and work with you to address any remedial actions which need to be taken.
We offer a fully interactive training session for your employees on Appropriate Workplace Behaviours with practical case studies on which situations are likely to amount to harassment in the eyes of the law and how employees can change their behaviour.
To request a discussion on this please click here or email Lee.Jefcott@brabners.com
