Sexual harassment in the workplace: potential new risks and duties for employers

Posted Tuesday 7th September 2021

The government’s response to the 2019 consultation on sexual harassment in the workplace was published over the summer on 21 July 2021 and details many potential legal developments in this area. Over half of the respondents stated that they had previously experienced sexual harassment at work.

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The consultation dealt with a range of issues in terms of workplace harassment, perhaps most notably the potential extension to time limits for claims under the Equality Act from 3 months to 6 months. This will give potential claimants a lot more time consider whether to make a claim of harassment and the timeframe will more strongly align with internal processes such as grievances. The wider consensus is that this will additionally aid individuals who may not be aware of their rights and often do not realise they have a claim until the limitation period is almost up.  This suggests we will be seeing more claims.

A potential new duty for employers to prevent harassment has also proven popular, with 96% of respondents stating that employers should be required to protect their staff with preventative action. Legislative change is expected to place a duty to undertake all reasonable preventative steps on the employer. What this means in practice for employer liability and for HR managers is as yet unclear but at the very least employment policies and procedures will need to be revisited and scrutinised, including anti-harassment and bullying as well as grievance and disciplinary policies. It is likely however that an incident of harassment must have occurred before a claim can be made.

To contrast, employer liability resulting from third-party harassment has split opinion amongst the respondents. Whilst many support the idea of a duty to protect employees in this respect, whether this should require an actual incident to occur is more widely debated. The government response appeared reluctant to enforce liability ahead of an incident. Nonetheless, an ‘all reasonable steps’ approach and defence for third-party harassment is expected to be introduced.

Proposals that will not be implemented include a name and shame system, on the basis that it may encourage employers to shy away from a full procedure and instead cover up harassment claims. Calls for an external reporting body have also been discarded, given the existence of ACAS.

It is clear that there will be greater requirements for employers to have robust policies and procedures in place and for these to be fully implemented, acted upon and monitored.  It is not enough simply to have a written policy in place. Training for staff and for HR managers will be necessary.

This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.

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