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#metoo – formal consultation on tackling sexual harassment now published

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The previously anticipated consultation paper on tackling sexual harassment in the workplace has now been published by the government. The two-part consultation focuses on how to make employers respect and prioritise the issue. One part of the consultation is a simple question format aimed at individuals who have experienced such issues in the workplace. The other part covers the more technical legal aspects. Interested parties have until 2 October 2019 to contribute to the consultation.

The consultation explores:

  1. a new mandatory duty on employers to protect workers from harassment. Views are sought on enforcement (including a potential financial penalty);
  2. requiring employers to externally report on prevention and resolution policies and get sign-off from the board on those policies. This may potentially be combined with an internal duty to monitor and report on complaints of this type and exit interviews;
  3. the re-introduction of legislative protections in respect of third party harassment. This includes whether one incident may be enough to trigger liability, what level of knowledge the employer would need to have and whether the defence that the employer has taken “all reasonable steps” to prevent harassment in the Equality Act should apply to third party harassment;
  4. new and additional protections for interns and volunteers. This includes consideration of whether all volunteers, formally or informally engaged, should be protected and whether the risk of compliance could have an overall detrimental impact on volunteer numbers; and
  5. whether the current three-month time limit to file harassment and discrimination claims should be extended to six months or another period.

The consultation suggests that there will need to be some “compelling evidence” that the duty outlined in point 1 above will be effective before the government is willing to introduce it. In theory, the Equality and Human Rights Commission (EHRC) exercising enforcement power could result in employers seeing a reduction in individual tribunal claims to enforce rights in this area. However, the EHRC has limited capacity and therefore it is unclear how much time and attention it would be able to dedicate to this area even if the duty was imposed.

We can expect a new statutory code of practice and, later in the year, technical guidance from the EHRC to help employers in their efforts. Guidance around the “all reasonable steps” defence is unlikely to stray too far from what is already established in the Equality Act 2010 and may largely reiterate what the EHRC Employment Code of Practice currently says around implementing an equality policy, raising awareness, providing training and properly managing complaints.

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