Government Outlines Plan To Change To Law On Sexual Harassment At Work

• Published date: 27 July 2021
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Health & Safety
• Law Firm: Brahams Dutt Badrick French LLP
• Author: Ms Amanda Steadman

On 21 July 2021 the Government published its long-awaited response to the consultation on sexual harassment in the workplace. In this briefing we explain the Government's commitments and what they will mean in practice.

Background

Following the explosion of the #MeToo movement in 2017, the Women and Equalities Select Committee undertook an inquiry into sexual harassment in the workplace in the UK. In 2018 the Committee published its report, setting out wide-ranging recommendations for change. On the back of that, the Government opened a public consultation on four of those recommendations, namely:

• the introduction of a mandatory duty on employers to protect workers from harassment and victimisation;
• how to strengthen and clarify the law in relation to third party harassment;
• whether protection was needed for interns and volunteers and
• whether the time limit for bringing discrimination claims should be extended beyond three months.

Almost two years have passed since the consultation closed, but, finally, on 21 July 2021 the Government published its response and has committed to making some changes to the law.

Mandatory duty to protect workers from harassment and victimisation

The current position is that sexual harassment in the workplace is unlawful and employers and individuals can be found liable in claims brought in the Employment Tribunal. Employers can avoid being found vicariously liable for harassment committed by their workers if they can show that they have taken reasonable steps to prevent such harassment occurring. In this context, reasonable steps include implementing an anti-harassment policy, providing good quality and regular training to staff and dealing with complaints effectively. In practice, most employers elect to take such steps, but there is no legal obligation to do so.

The consultation proposed introducing a legal duty on employers to take proactive steps to prevent sexual harassment. In practice, this would compel employers to take the steps mentioned above and they could be held to account for failing to do so, without the need for a claim of sexual harassment to be brought before an Employment Tribunal. The consultation proposed that this duty be enforced by the Equalities and Human Rights Commission (EHRC). It also asked whether individuals should be able to take enforcement action.

The response confirms that the Government intends to bring forward legislation to introduce a new duty requiring employers to take all reasonable steps to prevent sexual harassment as soon as Parliamentary time allows. It is not clear from the response whether this new duty will apply to all forms of harassment under the Equality Act 2010, or whether it will be confined to sexual harassment only.

The response also confirms that the EHRC will be responsible for enforcement of this duty using their existing powers. The Government will also "discuss scope for...