Sexual harassment in the UK workplace has been unlawful since the 1970s. In recent years, the global #MeToo movement has generated extensive media coverage of harassment allegations involving high-profile figures in politics, film and television, business and sport. There is widespread recognition that such behaviour is unacceptable, but to this day sexual harassment remains pervasive in the workplace.
Research by the Trades Union Congress found that more than one in two women and nearly seven out of ten LGBT people have experienced sexual harassment at work, ranging from inappropriate comments to sexual assault.
Four out of five women do not feel able to report harassment to their employer, often through fear of repercussions or not being taken seriously.
In response to significant pressure to address sexual harassment in the workplace, in July the UK Government launched a public consultation seeking views on what further steps should be taken to eliminate this “real, worrying problem”.
Currently the Equality Act 2010 prohibits unwanted conduct of a sexual nature or related to a protected characteristic such as sex which has the purpose or effect of violating dignity or creating an intimidating, hostile or offensive environment. The Act also makes employers responsible for acts of harassment carried out by their employees in the course of their employment. There is a statutory defence if employers can show they took “all reasonable steps” to prevent their employees from acting unlawfully.
A key part of the current consultation is whether employers should be subject to a new proactive duty to prevent sexual harassment.
This duty would require employers to take all reasonable steps to protect workers from harassment, with the key difference from current legislation being that they could be liable for a failure to take such steps rather than only being liable once unlawful conduct has taken place.
It is proposed that the duty would be enforceable by the Equality and Human Rights Commission as well as by individuals.
The consultation notes that work is already underway on a statutory Code of Practice which would support the proposed new duty, including providing guidance on what would constitute “all reasonable steps”. In addition, the consultation proposes a financial penalty of up to 13 weeks’ pay for breach of the new duty and requiring employers to publish reports on harassment prevention measures, to be signed off at board level. Employers could also be obliged to monitor and report on rates of harassment complaints and/or numbers of staff raising harassment in exit interviews.
The consultation also considers whether to extend the time limit for raising Employment Tribunal claims from three months from the act of harassment to six months, and whether protection should be extended to interns, work experience students and volunteers. These groups are viewed as potentially more vulnerable and less likely to report harassment because of their status.
Finally, it is proposed to reintroduce an obligation on employers to protect their workforce from harassment by third parties such as clients or customers, the previous such provisions having been repealed in 2013. The consultation closes on 2 October 2019.
Employers should already be taking steps to prevent harassment in the workplace such as implementing equal opportunities policies, training all staff on equality and diversity and dealing effectively with employee complaints, to enable them to defend claims under the current legislative framework.
It is difficult to underestimate the reputational damage caused by such claims.
The motivation for employers to be proactive in eliminating unacceptable conduct in their workplace therefore already exists.
It may be, however, that giving prevention of sexual harassment a similar weight to data protection and health and safety through the proposed new duty combined with reporting obligations and financial penalties would serve to force the issue up the boardroom agenda.
Frances Ross is an Employment Partner with Clyde & Co