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The Government Equalities Office (GEO) has outlined plans to give employees and others greater protections at work against sexual harassment.

Concerned that employers are not taking adequate steps to prevent harassment from happening, Consultation on Sexual Harassment in the Workplace outlines the government’s thinking on how this may be achieved.

A new preventative duty

• A new mandatory duty on employers, enforced by the EHRC, could be introduced to require them to protect workers from harassment in the workplace. The rationale for a new duty is that the shift from employer liability after the incident of harassment, to a proactive duty before any unlawful conduct has taken place, would make it clearer to employers that they must play a role in prevention and encourage them to make more effort towards it. The consultation states however that the government would ‘need compelling evidence that the change would be effective’.
• An alternative, or additional option, would be to introduce a requirement to publish or report on prevention and resolution policies publicly, with Board sign-off, to ensure that companies are engaging with this problem at an appropriate level.
• The consultation also confirms that work is underway by the EHRC to produce a new statutory code of practice on sexual harassment on which there will be a separate consultation later in 2019.

Third-party harassment

• The GEO states that it wants ‘to ensure that any victims of third-party harassment can be confident that they are protected by the law if their employer has not taken reasonable steps to protect them, and that they feel able to take legal action if they so wish. It is also important to ensure that employers are clear that they have this legal responsibility to protect their staff from third-party harassment, and that they take all reasonable steps to provide this protection’.
• After outlining the existing law on third-party harassment, the GEO states that before introducing explicit third-party harassment provisions, it’ll need to consult on a number of details including the incidence of harassment (is the previous three strikes formulation what is required?); if one incident is sufficient to trigger protection, what an employer would be required to ‘know’ or ‘ought to have known’; and whether a defence of having taken ‘all reasonable steps’ should be available to employers in such a scenario. See also our MD’s comment below.

Volunteers and interns

• The GEO is looking at whether all the protections in Part 5 of the Equality Act (i.e. not just those for sexual harassment) should be extended to volunteers and interns. Currently, some are not protected, or there is a lack of clarity, as they may not have the appropriate employment status.
• It is however concerned that introducing such protections may create ‘disproportionate risk and difficulties’ for those employers using interns or volunteers and is keen to avoid the ‘chilling effect’ this may have. To that end, there are as yet no specific proposals but rather a series of questions for interested parties to answer.

Tribunal time limits

• To address concerns that the standard, three-month time limit may be creating a barrier to justice, the GEO is looking at whether there are grounds for extending the time limits for all claims brought under the Equality Act (i.e. not just those relating to harassment).
• The consultation states that ‘there is a compelling case’ for aligning all time limits for Equality Act claims – as, for example, equal pay cases have a six-month time limit.

The consultation runs until 2 October 2019.

Our Managing Director, Beverley Sunderland, comments:

‘In its press release announcing the above plans, the GEO states “Until 2018 it was thought that the Equality Act 2010 provided protection in cases of third-party harassment, under section 26. However, in May 2018 the Court of Appeal ruled that the Equality Act could no longer be considered to provide protection in cases of third-party harassment, establishing key case law in this area”.

This neatly sidesteps the reality which is that when the Equality Act was first introduced it contained a specific offence of harassment by third parties (s. 40). Employers could be liable if they knew about the harassment, it had happened on more than two occasions and the employer took no reasonable steps to prevent it. After much lobbying from business, the government specifically repealed these provisions with effect from 1 October 2013 saying it was little used and employees were protected under the general law anyway. This begs the question as to why it was in there in the first place if the law already protected employees?

To prove this point, in Unite the Union v Naillard in 2018 the Court of Appeal held that employers should not be liable for harassment by third parties. They made the point that ‘negligent failure to prevent another’s discriminatory acts is a very different kind of animal from liability for one’s own’. They went on to say that if Parliament had intended there to be continuing protection against third-party harassment, it would not have repealed the ‘careful and explicit scheme’ set out in the Equality Act 2010.

Therefore, whilst the government may be seeking applause for dealing with this difficult issue, the fact is that they had the opportunity of leaving the 2010 legislation in place and did not do so’.