The government has recently proposed new measures to combat sexual harassment in the workplace. This includes a new proactive duty on employers to prevent sexual harassment and the reintroduction of protection from third-party harassment. The government has also said it will look at extending the time limit to bring all claims under the Equality Act 2010 from three months to six months.
The legislative changes required to introduce these measures will be put in place “as soon as parliamentary time allows”.
Proactive duty to prevent sexual harassment
The government intends to introduce legislation requiring employers to take “all reasonable steps” to prevent sexual harassment in the workplace.
This new proactive duty will mirror the existing legal requirements on employers but shift the point of liability to emphasise the importance of taking necessary preventative steps before an event occurs. Therefore, under the proposed duty, employers would still be required to take “all reasonable steps” to prevent sexual harassment in the workplace, just as they are now, but they could potentially be held account for failing to take these actions without the need for an incident to have occurred.
In order to help employers understand what “reasonable steps” they should be taking to prevent harassment, the Equality and Human Rights Commission (EHRC) will develop a new statutory code of practice. It is therefore possible that employers could find themselves subject to enforcement action by the EHRC based on lack of policies, training or other reasonable steps to prevent sexual harassment, even if no incident has occurred.
Legal Protection from third-party harassment
The government has also committed to introduce explicit protection against third-party harassment in the workplace, where employers are held liable for harassment of their employees by third parties, such as customers or suppliers.
It remains unclear in what form this protection will be reintroduced, but the government has confirmed that employers will have a defence to this type of claim if they are able to demonstrate that they took “all reasonable steps” to prevent the harassment occurring.
Extending time limit for Equality Act claims
The government has said it will ‘closely’ look at extending the time limit for bringing claims under the Equality Act 2010 from three to six months. If this extension is introduced, it will apply to all claims under the Equality Act, not just sexual harassment.
As any extension in time limit is likely to see an increase in the number of claims being brought, exacerbating further the existing tribunal delays caused by the pandemic, it is likely to be some time before this change is introduced.
What does this mean for employers?
The #MeToo movement has made it clear that existing laws around sexual harassment are not enough, and more is needed to drive lasting cultural change.
These proposals seek to encourage employers to now refocus on eliminating sexual harassment in the workplace by taking positive action to improve and update workplace policies and practices and make the workplace safer for everyone.
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