On 21 July 2021, the Government published its response to the consultation on sexual harassment in the workplace, seeking to "provide further protections to employees who are the victims of sexual harassment, whilst also furnishing employers with the motivation and support to put in place practises and policies which respond to the needs of their organisation".

We take a look at the proposed changes following the consultation, and what will be the impact on employers.

Why was there a consultation?

The consultation took place between July 2019 and October 2019, following the start of the #metoo movement in 2017 which “made it abundantly clear that this is a problem that persists at a startling rate in our society, despite the existence of these legal protections”.

Since the consultation closed, there have been a number surveys and reports published that confirm how prevalent sexual harassment (both in public and at work) continues to be, the most recent being:

• data collected by UN Women UK in March 2021 found that 97% of women aged 18-24 have been sexually harassed, with a further 96% not reporting those situations because of the belief that it would not change anything; and,
• a YouGov poll commissioned by Avaaz (reported by  the Independent on 29 June 2021) found that half of working women in the UK experienced unwanted sexual behaviour at work and feel that the Government is not doing enough to protect them from it.

What the Government’s commitments mean for you

Introduce a positive duty for employers to prevent sexual harassment at work

This duty is anticipated to require employers to take ‘all reasonable steps’ to prevent harassment, and for an incident to have taken place before an individual can make a claim. In addition to amending existing law, to ensure employers understand what it expected of them (and employees know what they can expect from their employer), the Government is to:

• work with the Equality and Human Rights Commission to develop a statutory code of practice (the Code) on sexual harassment and harassment at work (setting out the steps that employers should take to prevent and respond to sexual harassment, and what can be considered in evidence when determining whether the duty has been breached); and,
• prepare guidance to supplement the Code, in consultation with employers’ organisations and academics, that will outline the practical steps that employers can take to prevent harassment occurring.

However, the Government has declined to extend protection for volunteers and interns as “many of the latter group would already be protected, and that extending protections to the former could have undesirable consequences”.

Introduce explicit protections from third-party harassment

The Government’s intentions are vague; they have not decided whether the new protections should only apply when an incident of harassment has already occurred. However, what is known at this stage is that that employers will be able to use the ‘all reasonable steps’ defence to defend third party harassment claims.

Extending the time limit for bringing Equality Act cases to the ET from three months to six months

The government wish to have further consultation to hear views on whether the time limit for Equality Act claims should be extended to six months. This may in part be driven by questions of principle concerning whether there should be different time limits for non-Equality Act claims heard in Employment Tribunals. We have no date on when this consultation will take place so we will have to watch this space on this one.

Overall, those campaigning for change since the 2017 #metoo movement exposed the extent of workplace harassment have welcomed all of these commitments.

Capsticks’ view

It has been widely reported that these proposals shows that the Government intends to ‘crack down’ on workplace harassment. However, what is not clear is how the ‘proactive duty’ will be any different, in practice or effect, to the current law (as an employer can defend an Equality Act 2010 harassment claim if they can show that they have taken all reasonable steps to prevent the harassment).  That said, there is no doubt that the Code and Guidance will provide some very welcome (and, perhaps overdue) clarity on what amounts to ‘all reasonable steps’.

We now await the draft legislation, although it is unclear when this will become available. The Government has not committed to any timescales; all we know is that the necessary legislative changes will happen “as soon as parliamentary time allows”.

How Capsticks can help

Capsticks has significant experience of supporting employers to prevent discrimination and harassment in employment, from drafting equality and diversity policies, assisting with the review of current practice and implementing change, to delivering training to employees at all levels. We also deal with any complaints or specific issues that may arise in individual cases, by conducting investigations, supporting decision makers and HR, and defending any employment tribunal claims.

For further information on how we might assist your organisation, please contact Paul McFarlane, Siân Bond or Alistair Kernohan.