This article was first published in First Voice. Written by Hannah Thomas, employment solicitor at FSB Legal and Business Hub.
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In 2019 the government launched a consultation on sexual harassment in the workplace, noting that it was clear that this problem persists within our society. The aim was to establish the steps it could take to improve the legal framework that protects individuals from sexual harassment, including ways in which employers could be encouraged to take on a more proactive stance.
Sexual harassment is unlawful under the Equality Act 2010. The Act also provides that general harassment against an employee based on a protected characteristic (such as sex or race) is unlawful.
Currently, employers are under no proactive duty to prevent sexual harassment in the workplace. However, if an incident has taken place and an individual makes an employment tribunal claim, an employer will potentially be liable unless it can show it took “all reasonable steps” to prevent the sexual harassment from occurring.
“Reasonable steps” that provide a defence for an employer may include putting in place an anti-harassment or dignity at work policy, which is enforced in practice and on which staff receive training. FSB members have access to a template dignity at work policy on the FSB Legal and Business Hub.
Shift in focus
In its response to the sexual harassment consultation, the government has said that it intends to introduce a new proactive duty on employers in England, Scotland and Wales to take “all reasonable steps” to prevent sexual harassment in the workplace, when Parliamentary time allows.
This would mean that employers could be held accountable for failing to take preventative steps even if no incident has occurred. The idea behind the new proactive duty is to shift the focus away from after-the-event liability and towards preventative action.
The government has not yet set out the proposed steps employers should take, although guidance will be introduced in future. The new legislation, once it becomes law, is likely to require employers to be more inquisitive about what is going on in their workplaces, rather than simply having policies in place and dealing with complaints as they arise.
In light of the new proposed legislation, it is advisable for employers to ensure their existing policies and training on discrimination, including sexual harassment in the workplace, are up to date, so that they are better prepared to comply with the new legislation once it becomes law.
In its publication Sexual harassment and harassment at work, the Equality and Human Rights Commission has published guidance on complying with the law as it currently exists in relation to sexual harassment and other forms of harassment at work.
Employers may wish to review this because once the new legislation is introduced, future guidance is likely to build on it. This guidance sets out suggestions about what employers can do to proactively seek to be aware of what is happening in the workplace, by giving workers an opportunity to raise issues with their managers.
Extra time
The government is also considering an extension to the time limit for bringing an employment tribunal claim under the Equality Act 2010 to six months. This is currently set at three months, except for equal pay claims, for which it is six months. The employment tribunal has the discretion to extend this where it considers it “just and equitable” to do so.
Until 2013, under the Equality Act 2010, there was a specific law that made employers liable if an employee was harassed by a third party (for example a customer or client of the employer) in the course of their employment, but only if the employee had been harassed on two prior occasions.
The government now plans to re-introduce this duty under new legislation, but with some changes. Employers will be able to rely on the defence of having taken “all reasonable steps” to avoid the harassment by the third party.
In light of this, when entering into third-party supplier contracts, employers could consider including contractual clauses regarding the requirement for suppliers to have their own anti-harassment policies in place.