On 21 July 2021 the Government published its response to the consultation on workplace sexual harassment which was launched in 2019 to determine how to deal with sexual harassment in the workplace. The Government’s proposed changes are intended to encourage employers to prioritise the prevention of sexual harassment by taking proactive steps to make the workplace safer for everyone and will require employers to place more emphasis on the active prevention of sexual harassment in the workplace.

In this article, Michelle Chance (Partner) and Chris Warwick-Evans (Associate) consider the changes which the Government has committed to introducing, some of the likely implications for employers and they also identify some of the key considerations for employers to start addressing now. Employers who start to consider and address the new requirements now will be much better placed to ensure they are compliant with the new legal requirements once they are introduced and they will also reduce the likelihood of successful discrimination claims (and compensation awards which are not subject to a statutory cap) under the existing provisions of the Equality Act 2010. Employers who start making the required changes now are also likely to protect and enhance employee wellbeing and to become (or remain) an employer of choice given the increasingly competitive nature of recruitment in many sectors as the economy starts to recover and hiring increases.

Key changes

  • The Government will introduce a new duty for employers to prevent sexual harassment in the workplace. This will be introduced as soon as Parliamentary time allows, though there is no commitment by the Government to a specific implementation date.
  • The Government will also introduce a new duty for employers to prevent third party harassment (such as by a client, customer or supplier) in the workplace. This will be introduced when Parliamentary time allows and there is no commitment by the Government to a specific implementation date.
  • The Government has said it will look closely at extending the time limit for all claims brought under the Equality Act 2010, which is likely to be from 3 months to 6 months, bearing in mind the current pressures on the Employment Tribunal service.
  • The Equality and Human Rights Commission (EHRC) will be asked by the Government to produce a statutory Code of Practice on sexual harassment in the workplace (the “Code”). The Government will also publish separate practical guidance for employers to complement the Code. No timescales have been provided by the Government for these aspects of the reforms.  It remains to be seen whether an uplift in compensation of up to 25% for failure to comply with the Code will be introduced, in the same way as that which applies to failures by employers to comply with the ACAS Code on grievance and disciplinary procedures. There is likely to be greater compliance by employers if there is an additional financial penalty for non-compliance, such as an uplift in any compensatory award.
  • The EHRC may be given additional strategic enforcement duties by the Government in sexual harassment cases in due course so that enforcement is not solely by employees who have suffered from harassment. This may permit the EHRC to impose legally binding agreements on employers who fail to comply with the new requirements.

The new duties will not be extended to genuine volunteers as this is deemed likely to have disproportionately adverse consequences for small charities and voluntary organisations.

No new protections will be introduced for interns as the Government’s view is that they are already sufficiently protected under the Equality Act 2010.

Comment

Employers will be able to defeat claims in respect of failing to prevent sexual harassment or third-party harassment in the workplace if they can show that they have taken “all reasonable steps” to prevent the harassment from occurring. The above new duties can therefore be thought of as a pro-active duty on employers to take all reasonable steps to prevent sexual harassment and harassment by third parties from occurring in the workplace. The concept of “all reasonable steps” will not be prescriptive and will depend on factors such as the employer’s size and resources. As recent case law has confirmed, the word “all” in this context is significant; if there is a reasonable step the employer failed to consider or omitted to take, the defence will fail.

It is our strong view that the likely extension of the deadline in which claims can be brought for discrimination, harassment and victimisation under the Equality Act 2010 will (if implemented) result in substantially more employment tribunal claims, assuming there is no change to the current fee regime for claimants. This is because the trauma of experiencing sexual harassment is likely to currently prevent employees from bringing claims before the employment tribunal within the current three-month deadline.  Similarly, pregnancy and maternity related claims are likely to be deterred by the current three-month deadline since many parents are simply too busy with their new family commitments to commence claims within the current deadline.

Given that the proposed reforms will place new legal responsibilities on employers, it is very likely that unless the proposed statutory reforms, Code and/or guidance make the new obligations on employers much clearer (in particular, how they can be discharged by employers), that employees and their advisors will strategically allege in employment-related disputes that the employer has failed to discharge its new legal obligations to prevent harassment.  This will open the door for employees to say that they have made a protected disclosure and are whistleblowers and to try to frame subsequent acts/omissions by the employer which they disagree with or wish to resist (such as disciplinary investigations or suspension, even when legitimately required) as detriments they have been subjected to as a result of their purported whistleblowing and to pursue uncapped compensation before the employment tribunal on that basis. Unless the new requirements on employers are clarified in our view this is likely to become an unanticipated consequence of the reforms.

Until 2013 employers were liable for acts of harassment by third parties where there had been three or more incidents of harassment by the third party, though this was repealed by the Government because of the burden it placed on employers for acts which were likely to be outside of their control. The current proposals in respect of making employers liable for harassment by third parties are more onerous in that they appear to apply even to a single act of harassment by a third party and they do not explain how this issue will be resolved with the reintroduction of liability for acts by third parties, and it is unclear how the new requirements will work in practice. However, as we discuss later below, there are some steps which employers can take to reduce the likelihood of third-party harassment, and which will be relevant to helping discharge this element of the reforms.

Steps for employers to consider taking now

Although none of the above reforms look likely to be introduced imminently by the Government, it is likely that a significant new burden will be placed on employers in respect of preventing workplace sexual harassment. There is a significant change in emphasis from employers currently being able to defend claims retrospectively on the basis that they took all reasonable steps to prevent sexual harassment from occurring to a pro-active duty on them to take all reasonable steps to prevent sexual harassment from occurring. As stated above, they could face whistleblowing claims for failure to comply adequately with this legal obligation, even in circumstances where sexual harassment has not occurred as a result of any such failure to comply adequately with the new legal obligation. Although we do not know with certainty when the reforms will be implemented, we expect this to be prior to the next General Election which is expected in 2024. To this effect, employers should ensure that they are well placed to implement the reforms in due course and should start considering how they will effectively implement the changes.

To help prepare for the reforms and to ensure compliance with current legal requirements on employers under the Equality Act 2010, employers should consider taking the steps below. We expect that the Code and the practical guidance for employers will be important sources of information for employers in due course so that they can discharge their new duties once introduced.

Employers should also bear in mind that the Government consultation in 2019 occurred prior to the Covid-19 pandemic.  With many employers introducing hybrid working arrangements as the pandemic recedes, they will need to be alive to the specific risks of sexual harassment occurring in a digital, remote working environment and adapt the reasonable steps that they will take accordingly. Statistics have shown that allegations and incidents of sexual harassment have increased dramatically since employees have been working from home in the new digital, online environment.

  • Employers will need to review their current harassment and digital monitoring policies and procedures and update these in due course to ensure they reflect the new duties once in force. At this stage, employers should have already given careful consideration to updating their harassment and digital monitoring policies and procedures in light of the relatively recent shift to home working and any agile working or hybrid working arrangements that have been put in place (in particular, given that anecdotal evidence suggests that a disproportionate number of mid-level and senior men have returned to the office).
  • When reviewing and updating harassment policies and procedures, employers should first run a risk assessment to determine the level of risk and how this may differ across their organisation, and they may need to tailor their policies and procedures for different parts of the organisation as appropriate.
  • Training and appropriate use of refresher training will be required to embed the organisation’s policies and procedures, especially where it becomes apparent that staff may not understand or be compliant with what is expected of them. More in-depth training for managers and leaders is likely to be appropriate in many organisations.
  • Workplace champions may be helpful in some medium and large organisations to help embed a culture in which there is zero tolerance of harassment and where genuine concerns can be raised without fear of retaliation.
  • Employers will need to ensure that they have an adequate reporting mechanism for harassment complaints and sufficient processes in place to collate data of harassment complaints so that they can monitor complaints to identify patterns and take prompt follow-up action as appropriate.
  • Employers will have to carefully identify the likely risk of harassment by third parties by conducting a risk assessment, and consider what they can reasonably do to prevent such harassment. We envisage more use of written signage at employer’s premises to remind clients, customers, suppliers and contractors that harassment of their staff is unacceptable, a clause being introduced into companies’ standard terms and conditions of business with third parties requiring them to comply with the Company’s anti-harassment policy, induction processes for contractors and suppliers, penalties for third parties who commit harassment (such as the suspension of service to customers and clients or the termination of contracts with contractors and suppliers), formal reporting processes and training will all be used by employers to try to demonstrate that reasonable steps have been taken.
  • Employers will also have to introduce appropriate measures to prevent the victimisation of those employees who complain that the employer has not adhered to the new legal requirements.

Given that 54% of respondents to the Government’s questionnaire issued as part of the consultation on sexual harassment reported having experienced harassment at work and that overall 29% of those in employment reported experiencing some form of sexual harassment in their workplace or work-related environment in the last 12 months, it is clear that sexual harassment remains a serious issue in the UK and there is clearly quite some way to go before sexual harassment is removed from UK workplaces. We expect it will be surprising to some readers that Government research has also found that men were almost as likely to experience workplace harassment as women (though there were differences in the type of sexual harassment experienced) and how this can be prevented should be carefully considered by employers. LGBTQ+ staff are also at an increased risk of sexual harassment and employers should factor this into their harassment prevention strategies too.

Given the prevalence of workplace sexual harassment and the detrimental impact on employee well-being, sickness absence, loss of productivity, the time and cost of legal claims against employers and the potential for serious reputational damage to employers, employers should already be prioritising the prevention of harassment and should not wait for the above reforms to be implemented before checking their current approach is adequate to protect their employees and to prevent claims.

We regularly advise employers on all employment law and employee relations aspects related to discrimination, harassment and victimisation, and the Equality Act 2010 more generally, including preparing and delivering training, developing employer policies and procedures to help reduce risk and implement best practice. Please do not hesitate to get in touch if your business would like to discuss any of these issues or if you are a senior executive or senior professional looking for practical and strategic employment law advice on your own situation.

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