Broad brush - UK government responds to sexual harassment consultation

Hogan Lovells

Hogan Lovells

The UK government’s response to the 2019 consultation on sexual harassment in the workplace confirms that it will introduce a legal duty on employers to protect workers from harassment, re-introduce protection against third-party harassment and “look closely” at extending the time limits for bringing discrimination claims under the Equality Act. However, it will not extend protection against harassment to volunteers. The response contains little detail about the precise form the new protections will take or when they will be introduced.

The UK government’s response to consultation on sexual harassment in the workplace is more far-reaching than might have been expected. However, it is still light on detail and there is no indication of when reforms might take effect, other than to say that this will happen “when Parliamentary time allows”.

Duty to prevent harassment

The government has confirmed that it will introduce a legal duty on employers to protect workers from harassment in the workplace. This will require employers to take all reasonable steps to prevent harassment and will be underpinned by a statutory code of practice and guidance.

Although the government initially indicated that it would need “compelling evidence” that introducing such a duty would be effective, it now says that a duty is an important and symbolic first step to tackling the issue.

The response is not explicit about how the new duty will be enforced but suggests that this will be both through the EHRC and individual complaints. It appears that an individual will only be able to bring a claim if an incident of harassment has occurred. There will be further engagement with stakeholders, including about compensation models, when the implementing legislation is drafted.

Third party harassment

The government had already said that it would reintroduce protection against third-party harassment in the workplace and the response confirms that this remains the intention, although there is little further detail about how the protection will be framed. Stakeholders will be given further opportunities to comment on whether an incident of harassment should be a pre-requisite for bringing a claim. The normal “reasonable steps” defence will be available in third party harassment claims.

Volunteers and interns

In the consultation paper, the government identified unpaid staff such as volunteers and interns as being particularly vulnerable to harassment. However, the government has decided not to extend the protections in the Equality Act to volunteers so as not to create disproportionate liability and difficulties for small volunteer-led organisations. The government takes the view that unpaid interns are already likely to be workers and as such protected under the Equality Act in many cases.

Time limits

Time limits for bringing discrimination claims under the Equality Act are relatively short and the government is clearly sympathetic to the idea of extending them in all cases, not just in relation to sexual harassment. However, it is concerned not to place additional pressure on a tribunal service that is already coping with the effects of the COVID-19 pandemic. The government says it will “look closely” at extending time limits, without actually committing to action or a timescale.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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