In the line of duty

Sexual harassment in the workplace has never been far from the news – particularly over the past few years, following the rise of the #MeToo movement. Despite the UK having existing legal protections, many remain shocked by how widespread and far-reaching sexual harassment is in the workplace, and other settings, and find its continued prevalence extremely worrying.

Some major law firms have hit the national headlines recently, too, due to cases of serious sexual harassment in their organisations – often historic – coming to light.

In 2018, the Women and Equalities Select Committee focused on what could be done to address sexual harassment in the workplace and published their wide-ranging report on the issue.

In response, in 2019 the government launched a major consultation exercise on sexual harassment in the workplace recognising that, while sexual harassment is a wider problem requiring cultural and societal change, a strong legal framework is needed which “establishes clear standards and expectations for individuals and employers alike and is responsive to the modern workplace”.

The response to this consultation was published by the government in July 2021.

New legal duty to prevent sexual harassment

In their consultation response, the government announced the introduction of a mandatory legal duty on employers to take all reasonable steps to prevent sexual harassment in their workplace. Currently, an employer has a defence to an action in relation to an incident of sexual harassment, if it can show it took all reasonable steps to prevent it.

It’s likely that employers will only be liable for breaching the new duty if there has been an incident of sexual harassment, but there is no final decision on that as of yet.

Unfortunately, the response is not particularly clear, or helpful, about the practical difference between the new proposed law and the current position. Presumably, employees could potentially launch a separate, additional, action against an employer for a breach of a statutory duty for failing to take all reasonable steps to prevent an incident of sexual harassment.

The government does mention support for enforcement actions on this issue by the Equalities and Human Rights Commission (EHRC) and will discuss developing these further, as part of this change to the law. It will also help the EHRC in developing a new statutory code of practice, based around the current EHRC technical guidance.

New liability for third party harassment

At present, employers are not held legally liable for situations where an employee is subjected to sexual harassment by a third party, for example by clients, agents or contractors.

The response states the law will change to make employers liable to the employee for third party sexual harassment. There will be a defence available, if the employer can show that it took all reasonable steps to prevent third party harassment. A decision has not yet been made on whether an actual incident of harassment must have taken place before the employer will be liable to their employee for failing to take all reasonable steps.

Tribunal time limits

Serious consideration is also being given to increasing the time limit for employees making employment tribunal claims for sexual harassment (and all discrimination claims) in the workplace, from three months to six months from the incident(s).

What should firms do to prepare – or catch up?

Much depends on your firm, and people, but here are my suggestions for next steps:

• read the government response to the consultation
• consider EHRC technical guidance l discuss at senior management level
• consider any recent incidents of sexual harassment allegations for lessons to learn
• review your current policies and procedures on sexual harassment and improve if needed.
• ensure reporting channels are sensitive, appropriate and diverse
• prepare an ongoing action plan to: bring the firm up to speed on compliance with the law and good practice
• introduce training (tailored for your firm and people) on sexual harassment at all levels (even as basic as ‘what is sexual harassment’ or ‘what are our responsibilities as individuals’).

Finally, identify senior employees to be on standby to conduct internal grievance investigations and disciplinary procedures, including appeals, dealing with sexual harassment allegations. Provide them with specific tailored training.

Having such people on standby can save a huge amount of management time, helps avoid delays and errors in your procedures, and ultimately enables you to carry out your responsibilities to your employees promptly, properly and sensitively.