The government has published its response to its Consultation on Sexual Harassment in the Workplace, which closed in October 2019. The response confirms that the government will introduce a positive duty on employers to prevent sexual harassment, something favoured by the majority of respondents. Explicit protections from third party harassment will be brought in, and the government will also consider whether Employment Tribunal time limits should be extended from three to six months. However protections will not be extended to volunteers and interns.
The government anticipates that the new positive duty will incentivise employers to focus on preventing harassment. It is likely to use the model set out in the consultation, with “employers required to take ‘all reasonable steps’ to prevent harassment, and for an incident to have taken place before an individual can make a claim”. A statutory code of practice will be developed by EHRC, accompanied by guidance for employers. Organisations will be required to take reasonable, proportionate steps, taking into account their size and circumstances.
Protection from third party harassment (for example customers or clients) will also be brought in “when parliamentary time allows”. No decision has been made on whether protection will start in circumstances where no incident has yet occurred, or only where a report of harassment has already been made. The previous test – where protection only started after a third incident had occurred – appears not to be favoured. Employers will have a defence that they have taken all reasonable steps to prevent third party harassment.
On volunteers and interns, the response recognises the “power dynamics” which can come in to play in these types of work relationships. The government considers that interns, even if unpaid, are likely to be classed as workers within the definition of the Equality Act and are therefore protected. In the case of volunteers there is no plan to extend protection but there is instead an expectation that responsible employers will ensure they have an effective anti-harassment policy that covers everyone at work.
