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".
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:
- Creating a sufficiently high risk of enforcement to incentivise prevention; and/or sending a signal to employers that they must prioritise prevention.
- 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.
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