Many employers are still grappling with the difficult issue of sexual harassment in the workplace. The problem of sexual harassment at work has repeatedly hit the headlines in recent times. This has prompted the government to consult on how to improve the situation.
The government has now published its consultation response, which makes a number of proposals to increase the protections afforded to employees. The key proposal, in relation to employers, is to introduce a new positive duty on employers to take “all reasonable steps” to prevent workplace sexual harassment. The government believes a change in legislation will act as a “symbolic first step” to driving change and will lead employers to prioritise putting in place preventative measures.
What would “all reasonable steps” in relation to a positive duty mean in reality? An “all reasonable steps” defence already exists for claims of harassment. Tribunals will consider three factors when this defence is put forward: (i) what, if any, steps have been taken; (ii) are these steps reasonable and likely to prevent harassment; and (iii) was it reasonable for any other steps to have been taken. Establishing all three steps in practice is hard for employers to do successfully which emphasises the importance of employers having comprehensive equality policies, providing regular training and dealing with allegations appropriately. The government has said it will produce accessible guidance for employers to help guide them through how to take the most effective action. This guidance should hopefully increase employers’ proactive approach to preventing sexual harassment by taking steps to reduce the likelihood of harassment even before any claims are reported.
Another proposal is the re-introduction of specific protections against harassment by third parties. This means employers could be liable in instances where an employee is subjected to harassment by a third party such as a customer, supplier or member of the public. It is not yet clear what these additional protections will look like, but the government has made clear that the employer’s defence of having taken “all reasonable steps” would be available.
The consultation response states that the government has also considered the possibility of extending the time limit for bringing discrimination claims under the Equality Act 2010. The consultation recognised that internal investigations into sexual harassment can sometimes take months and that, by extending the time limit for bringing a claim, an employee would no longer need to decide between initiating tribunal proceedings while their concern was still being considered by an unresolved internal process, or risk missing the three-month time limit.
There is no indication that the proposals will be coming into effect anytime soon. In the meantime, employers should still be taking steps to deal with any sexual harassment in the workplace, whether by third parties or otherwise, to avoid claims for sex discrimination.