Government responds to consultation on workplace sexual harassment

Response proposes introduction of new duty on employers to take ‘all reasonable steps’ to prevent sexual harassment.

In July 2019 the government launched its consultation into workplace sexual harassment, which ran until 2 October of the same year. The consultation was launched in the face of a series of claims and newspaper stories, including the #metoo movement, that shone a light on the prevalence of workplace sexual harassment, particularly impacting on women. In 2018 the Women and Equalities Select Committee undertook an inquiry into sexual harassment in the workplace. 

As noted in the report, workplace sexual harassment has been prohibited by the Equality Act 2010 (the Act) and its predecessor legislation for decades, yet harassment and its effects continue. The consultation therefore sought to hear evidence on, amongst other things:

• introducing a mandatory duty on employers to protect workers from harassment and victimisation in the workplace
• how to strengthen and clarify the laws regarding third-party harassment
• whether interns were protected by the Act and whether the Act should be extended to cover volunteers
• extending employment tribunal time limits in the Act from three months

The response to the consultation, released on 21st July 2021, notes that many respondents gave positive feedback to the proposal to introduce a new duty on employers to prevent sexual harassment and a common view that employers would be motivated by this to enact changes. There was broad support for protections to cover interns and volunteers, though concerns were raised of the potential impact this could have on the third sector, particularly smaller charities, due to the administrative burden.

As a result, the government has announced its intention to introduce a duty requiring employers to prevent sexual harassment to make the workplace safer for everyone and explicit protections from third-party harassment will also be introduced.

On extending protection to volunteers and interns, the government concluded interns were already likely to be covered by protections under the Act but it would not extend the protection to volunteers as this could have ‘undesirable consequences’.

Finally, the government said it would look at extending the time period for claims for workplace sexual harassment under the Act to six months.

A note on third party harassment

Protection against third party harassment was clearly set out at s.40 of the Act which created a ‘three strikes’ rule which said that if harassment had previously happened twice before and the employer knew about it but failed to take reasonable steps to prevent it from occurring again then the employer could be held liable, even if the harassment was not by the same third party or of the same nature in any of those three events of harassment.

However, in 2012 the government’s response to consultation on repealing s.40 of the Act concluded that ‘nothing in the consultation responses […] persuaded us that there is a case for retaining [s.40].’ This conclusion was arrived at despite a clear majority of respondents to the consultation being against s.40’s repeal.

With s.40 of the Act repealed a narrower avenue for third party harassment claims was left under s.26 of the Act. The Court of Appeal’s decision in Unite the Union v Nailard [2018] suggested that an employer would only be liable under s.26 in exceptional circumstances where its employee was harassed by a third party and the employer’s failure to protect them was motivated by the protected characteristic. In effect, the repeal of s.40 of the Act meant employers were very unlikely to be found liable for a third party harassing an employee.

Comment

We can expect legislation imposing a duty on employers to protect its employees from sexual harassment, including that from third parties, to be introduced when parliamentary time allows. It will be interesting to see how the government goes about reintroducing liability for the actions of third parties and whether this will follow the ‘three strikes’ rule, or some other test.