Government publishes response to sexual harassment at work consultation

On 21 July 2021, the Government published its response to the consultation on sexual harassment in the workplace, with the aim of tackling sexual harassment in all its forms, and to prompt employers to take steps to make a positive difference.

The response confirms the Government’s intention of re-introducing employee protection against third party harassment, meaning employers could be held liable for harassment against their employees by customers or suppliers if they have failed to take all reasonable steps to prevent third-party harassment from occurring – although there is limited detail as to how this will work in practice.

The previous system held an employer liable for a customer or third party’s action if two previous incidents occurred (which meant it was called the ‘three strikes rule’).

34% of the respondents to the consultation agreed that new protection against third-party harassment should not require the need for a previous incident, but it is unclear from the Government’s response as to what approach will be taken under the new rules.

The consultation asked whether interns and volunteers should be protected from discrimination, harassment and victimisation under the Equality Act, and 80% of the respondents agreed with this approach.  However, in response the Government has rejected this proposal, saying that:

• most interns, who are working to gain professional experience, would be considered to be workers, so would therefore already be protected by the Equality Act; and
• it would be disproportionate to provide statutory protection for volunteers (who carry out work on an ad hoc or informal basis, or support small, volunteer-led organisations), as such protection could outweigh the value of the services being provided.

Nevertheless, the response does state that volunteers who ‘give their time for free to support their community or an issue they care about’ should be protected from harassment, discrimination and victimisation.

Although the government’s response has not provided a definitive answer, it seems likely that the time limit for individuals to bring claims in the Employment Tribunal will be extended from three months to six months for all Equality Act based cases. The extension will avoid individuals feeling pressured to choose to the initiate the tribunal process whilst internal grievance processes are ongoing, in order to avoid falling outside of the time limit.

In addition to benefiting individuals, the government has recognised that the pandemic has put additional pressure on the entire courts and tribunal service, so any extension to the time limit will benefits tribunals in restoring its existing levels of service.

The result of the consultation means that employers will be expected to take more action to prevent workplace harassment. Although we do not know when these changes will be implemented, there are a number of steps employers can be taking now to prevent workplace harassment, including:

• ensuring that discrimination and harassment policies are up to date;
• providing regular equality and anti-harassment training to employees; and
• spreading awareness around the workplace.

The government’s response can be accessed here.

For more information on the article above please contact Charles Pallot.