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Sexual Harassment in the Workplace

In July 2021, the government published its response to a consultation launched by the Government Equalities Office in July 2019 on how best to tackle sexual harassment in the workplace. In its response the government highlighted that as people start to return to offices and other workplaces now is the time to ensure that we are “building back better” in every corner of our lives and as part of this it is crucial that we work towards making everyone feel safe in the workplace.

A survey undertaken by the government revealed that:

“Overall, 29% of those in employment experienced some form of sexual harassment in their workplace or work-related environment in the last 12 months. Unwelcome sexual jokes and unwelcome staring were the most common forms of sexual harassment experienced in the workplace….. 20% of those in employment experienced sexual harassment at their physical place of work (for example in the office).”

Duty to prevent workplace sexual harassment

In the government’s response to the consultation on workplace sexual harassment, they confirmed that they will:

  • introduce a new duty for employers to prevent sexual harassment and third-party harassment in the workplace; and
  • consider extending the time limit for all claims under the Equality Act 2010.

The belief is that by introducing a duty, it will encourage employers to be proactive in making the workplace safer and preventing sexual harassment.

The response to the consultation also suggests where an incident has taken place, there will be some form of a defence available where employers can show they have taken “all reasonable steps” to prevent the sexual harassment.

Action and enforcement

As well as the new legal duty, the government have committed to focusing on employer action and enforcement.

The consultation response highlights the ability of the Equality and Human Rights Commission (EHRC) to reach binding agreements with employers who have been found guilty of offences under the Equality Act 2010. It appears the government will support the EHRC in developing a code of practice, and believes that this will assist employers understand their existing duties in this area and whether they have taken “all reasonable steps” to prevent harassment in the work place. The government will also produce accessible guidance for employers which will outline what practical steps they can take. This measure will also assist employers in being proactive in taking reasonable steps as mentioned above.

Third party harassment

The responses to the consultation highlighted several difficulties for employers being liable for preventing third party sexual harassment. The government has proposed to introduce a defence for employers where they can demonstrate they have taken “all reasonable steps” to have prevented third-party harassment.

Time limits

Interestingly, the government is considering extending the time limit for claims under the Equality Act 2010 in light of the its benefits and the current pressures on the Tribunal service. It appears a new time limit of six months appears to be the most suitable option available. If this should happen it would mean employers would have to wait longer before any discrimination claims were potentially out of time.

Additional suggestions

Additional suggestions as to how harassment in the workplace could be tackled, have included:

  • The introduction of a “naming and shaming” mechanism. This has been rejected as it could encourage businesses to establish an environment of secrecy where harassment is not properly investigated, instead of creating a workplace where employees feel safe and able to raise such serious concerns.
  • The introduction of an external reporting body so that individuals could raise concerns anonymously, instead of using their employer’s internal process. The view is that internal resolution would be more suited for such concerns and ACAS would be able to assist should internal resolutions fail.
  • The reinstatement of a now-repealed provision in the Equality Act 2010 which enabled the Employment Tribunal to make recommendations to employers which would benefit those other than the claimant for example sexual harassment training and so on. This is unlikely to be reinstated in light of the view that this provision was repealed because Employment Tribunals are not best placed to make such recommendations.

Conclusion

In light of the number of sexual harassment cases in the media at present, there appears to be a cultural shift in employees having the courage to raise and talk more about sexual harassment that they have suffered which perhaps was a taboo subject previously. It is crucial that employers take all reasonable steps to safeguard their employees and the company. It is important to have robust sexual harassment policies in place as well training where employees are able to fully engage and participate. It is also important to fully investigate grievances or complaints of sexual harassment. We can of course assist you in this regard. Please contact us on 029 2034 5511 or at employment@berrysmith.com.