In July, the Government published its response to a public consultation, outlining its intention to introduce a mandatory duty on employers to prevent sexual harassment as soon as parliamentary time allows.
While nothing is changing immediately and a time scale hasn’t been given for the implementation of these new measures, it is important that business leaders understand what’s to come, and review their harassment policies, procedures and training, so they’ll be in the best position possible to address the changes when introduced.
Why the change?
The Equality Act 2010 defines sexual harassment as unwanted conduct of a sexual nature that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.
A single act of harassment is enough to constitute a complaint and the victim does not need to have made it clear that the conduct was unwanted.
Examples include making sexual remarks about someone’s body or general appearance, telling sexual offensive jokes, asking about someone’s sex life, sharing pornographic imagery, touching someone against their will, and sexual assault or rape.
Despite these legal protections, according to research carried out by the CIPD, sexual harassment is still a serious problem in UK workplaces with 4% of employees saying they have experienced unwanted behaviour in the last three years and almost a quarter (24%) believing reports on issues like bullying and harassment are swept under the carpet.
Worrying studies such as these, coupled with increasing pressure from movements such as #MeToo, resulted in the Government launching its public consultation in 2019, which has shown that many are supportive of the introduction of a new duty for employers to prevent harassment.
This means employers who fail to prioritise preventative measures will be at risk of a claim, in addition to a claim for workplace harassment.
Here’s the details we know so far:
A new emphasis on prevention
Employers will be required to take “all reasonable steps” to prevent sexual harassment. It appears an incident will need to have taken place before a claim can be made, but further clarification is required. We also do not know what compensation could be an awarded to an employee. However, using the language of “reasonable steps” suggests that leaders will have flexibility in how they approach the new duty rather than having to follow a prescriptive list of requirements.
In terms of enforcement, the Government intends that there will be more support for the Equality and Human Rights Commission (EHRC) to take action and impose legally binding agreements with employers who fail to get the new duty right. The EHRC will also develop a statutory code of practice to sit alongside current technical guidance on how to tackle and respond to harassment effectively.
Extended time limits
The Government recognises that the three-month time limit for those bringing claims can be too short and may be a barrier to justice, especially for those dealing with the trauma caused by sexual harassment. While not finalised, there’s a strong possibility that the limit will be extended to six months and cover all Equality Act claims, including age, race and disability discrimination, as well as sexual harassment, which will be a significant departure from the current system.
Responses to the consultation did not favour the naming and shaming of those who were found to have contravened protections.
Third party harassment
Until 2013, employers could be liable for the harassment of employees by third parties, such as suppliers or customers, and the Government is now committed to re-instating that protection. While we don’t know what this will look like yet, the former system was known as the “three strikes rule” meaning an employer could not be held liable until a third party had been involved in two previous incidents.
Volunteers and interns
The consultation also considered whether specific protections should be extended to volunteers and interns. However, this was discounted as interns would already be considered workers and therefore protected by the Equality Act, while genuine volunteers should remain outside the scope of the Act.
Does your workplace need support in readying itself for these changes? Are your sexual harassment polices and procedures in need of a health check? Our experienced HR consultants work effectively to help you develop and implement strategies to prevent toxic behaviour and enhance your company culture. Email firstname.lastname@example.org to get started.