UK: Q&A On New Government Consultation On Sexual Harassment In The Workplace

Last Updated: 9 October 2019
Article by Philip Henson

Speed Read: The Government and Equalities Office has announced a new consultation on sexual harassment in the workplace, which proposes a new Statutory Code of Conduct, and a new "Preventative Duty", which could supercharge the Commission for Equality and Human Rights (EHRC). The consultation also seeks views on extending protections to interns and volunteers, and also extending the statutory time limits for bringing a claim in the employment tribunal for "Equality Act Employment Tribunal cases as a whole".

Background

Whilst the Government considers that the current protections under the Equality Act is "strong and effective" the Government is keen to hear views on the following:

  • what more could be done to ensure that employers do take all steps they can to prevent harassment from happening;
  • whether employers need to be made explicitly responsible for protecting their staff from harassment by third parties, like customers and clients;
  • whether, in practice, there are any interns who are not currently covered by equality protections in the workplace;
  • what the right balance is between the flexibility of volunteering and equality protections for volunteers; and
  • whether people are being denied access to justice because of the three-month time limits for bringing an equality claim to an Employment Tribunal.
  • The consultation also welcomes thoughts on non-legislative solutions to the specific issues raised, and the wider problem of workplace sexual harassment

There are two aspects to the consultation - The technical consultation focusses on the details of the legal system underpinning, and a public consultation that invites the views and experiences of members of the public.

A Statutory Code of Practice on its way – The consultation confirms that work is underway to introduce a statutory Code of Practice on sexual harassment and harassment at work, which will further clarify the law.

The plan is for the EHRC to release technical guidance on this topic later in the year, with plans for it to form the basis of a statutory Code of Practice to be laid in Parliament following the outcome of this consultation. The EHRC will consult on the Code of Practice.

The Government feels that a statutory code will help employers to better understand what is expected of them by law and, in particular, what might be considered 'all reasonable steps' to prevent harassment. That might help provide further clarity to employers – as the consultation acknowledges that employers very rarely feel able to use the defence of having taken 'all reasonable steps' to prevent the harassment.

Research on workplace interventions – The consultation confirms, rather cryptically, that the Government is undertaking research to identify the most effective workplace interventions to prevent sexual harassment, and they intend to make these lessons widely available to employers in order to support best practice.

New Preventative duty on Employers? – A controversial suggestion (the consultation says "it has been suggested", which I read as "this is what we are probably going to recommend") in the consultation is [my emphasis] "that in order to make employers take their legal responsibilities seriously, a new mandatory duty should be introduced that requires employers to protect workers from harassment in the workplace. It is proposed that this would be enforced by the EHRC, using its powers under the Equality Act 2006".

What could that mean for employers? The consultation explains that if introduced, a new Preventative Duty would not require employers to take any practical steps they are not already expected to take. The rationale for a new duty is that the shift from employer liability after the incident of harassment, to a proactive duty [my emphasis] before any unlawful conduct has taken place, would make it clearer to employers that they must play a role in prevention and encourage them to make more effort towards it.

The proposed duty has the potential to create change in two ways:

  1. Creating a sufficiently high risk of enforcement to incentivise prevention; and/or sending a signal to employers that they must prioritise prevention.
  2. Introducing a new duty would require a change to primary legislation.

The consultation confirms that for the Government to take such a significant step "it would need compelling evidence that the change would be effective."

How would this new duty be enforced?

The consultation proposes that the EHRC could investigate an organisation on the basis of a suspected breach of the duty, and examine the preventative measures it had in place. Such an investigation could be triggered in a number of ways, including through whistleblowing disclosures, which the EHRC will be able to receive by the end of this year, when it will be added to the list of prescribed whistleblowing bodies. It also states that the duty could be enforced by individuals.

The consultation stresses that EHRC's enforcement powers, as set out in the Equality Act 2006, reflect their regulatory role in helping organisations to achieve a positive equality outcome, rather than catching them out if they fall short. The Government considers that the outcome of most enforcement action is to agree an action plan with an organisation, setting out steps to avoid the repetition or continuation of a suspected unlawful action.

It acknowledges that if enforcement by individuals were to be allowed, there is an open question over whether an act of harassment would need to have taken place for an individual to bring a claim based on the duty, or if a challenge could be brought on grounds of breach alone.

What model could the Government propose?

The consultation stresses that breach of the mandatory duty would not necessarily [my emphasis] be directly linked with financial loss, and hence would not automatically result in compensation.

However, it is explained that "if it was thought that a financial penalty should be directly linked to breach of the duty, we could look to replicate existing models in employment law, in which employers' failure to comply with a statutory duty results in compensation".

What could be the level of compensation?

The example set out in the consultation is a TUPE situation where an employer fails to comply with their statutory duty to inform and consult staff about a proposed transfer of undertakings, the maximum amount of compensation which can be awarded is 13 weeks' gross pay. The consultation explained that this model (presumably 13 weeks gross pay) could be used to set a standard for compensation in enforcement of the mandatory duty.

A further option could be a free standing claim in the employment tribunal, possibly linked to the success of a claim of harassment.

Extending Protections for Interns and volunteers

The consultation also proposes that interns should have the same equality protections as any other person in the workplace and that volunteers should have more protection.

Extending the deadline to bring an equality related claim?

Employers will be interested to note that the consultation acknowledges that in some circumstances the standard time limit for bringing a claim to an Employment Tribunal, throughout both employment and equality law, might benefit from being extended from the current limit of three months from the date of the act complained of). Concerns have been expressed that three months is too short a period for bringing an Equality Act claim to an Employment Tribunal and that this may be creating a barrier to justice. Therefore the government is looking into extending this – crucially, not just for harassment, "but Equality Act Employment Tribunal cases as a whole".

How to respond to the new consultation?

If you are interested in replying directly (before the deadline of 2 October 2019) then the contact details are below.  Or, if you would like to instruct the employment team at ebl miller rosenfalck to submit formal responses on behalf of your organisation then please get in touch.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions